I-140 PETITION FOR ALIEN WORKER

A U.S. employer may file an I-140 petition for the following group of beneficiaries:

• an outstanding professor and/or researcher who are internationally recognized and have 3 years of teaching or research experience
• managers and executives of a company where an individual has been employed for at least a year in the previous three years if he or she plans to enter the U.S. to continue his or her job with the same employer
• an individual who has a master’s degree
• an individual with a bachelor’s degree
• an individual with exceptional abilities in art, science, or business who will substantially add to the American economy,  cultural or educational interests of the U.S.
• a skilled workers or unskilled workers with 2 years of qualified specialized training or experience who will perform work for which no qualified workers are available in the U.S.

An alien may file an I-140 petition on his/her own behalf if:

• An Alien is a person of extraordinary ability in the science, art, education, business or athletics who sustained national or international acclaim;
• An Alien holding an advanced degree or a person of exceptional ability in science, art or business and who is eligible for “National interest Waiver” (NIV).

An I-140 petition is the second step in the employment based Green Card process.

Once the employer’s PERM Labor Certificate is approved, the employer may file Form I-140, Immigrant Petition for Immigrant Worker on behalf of the employee.

In order to establish eligibility for I-140 Petition, the employer must demonstrate that:

1. 1. 1. The position qualifies for the qualification requested (EB-2, EB-3, EB-1);
      2. The beneficiary is qualified for the position, and;
      3. The employer (petitioner) has the ability to pay the wage offered to the beneficiary as of the priority date.

Evidence of the Employer’s ability to pay must be demonstrated by either the company’s net income equal to or greater than proffered wage or, if the company’s assets are zero, by showing positive assets equal to proffered wage. Net current assets are generally calculated using the Schedule L of Form 1120. Current liabilities (lines 16-18) are subtracted from current assets (lines 1-6) to arrive at the figure used for net current assets.

When the petitioner is already paying the beneficiary but at a rate lower than the proffered wage, if the petitioner establishes net income or net current assets that are greater than the difference between the actual wage and the proffered wage, the petitioner establishes the ability to pay.

To prove company’s financials the following documents are acceptable:

• Annual report
• Federal Tax Return
• Audited Financial statement

*** The  subsidiary should have the ability to pay the required wage not the parent company. 

 Documents to accompany I-140 Petition

• Filled Form I-140 with corresponding filing fee by check or money order made payable to the relevant USCIS regional Service Center;
• Original Approved Labor Certificate signed by Employer and Beneficiary;
• Letter from the employer, supporting the petition
• Brochures describing employer’s business;
• Company’s tax return or audited financial statements;
• Beneficiary’s resume;
• Diploma or other documents such as degree certificates, qualification letters etc. 
•  Letter from the previous employers of the beneficiary evidencing her experience ( if any)
• Certified copy of the official academic records of the beneficiary;
• Copy of the passport along with the most recent I-94 arrival & departure record;
• Documents evidencing current status;
• Most current pay stubs and 2013 tax return along with W-2 for the beneficiary.

*Note: At this stage no documents are required for the family member of the sponsored applicant.

When the Form I-140 employment-based immigrant visa petition is submitted to the USCIS Service Center , the petitioner must indicate whether the beneficiary will apply for an immigrant visa through “consular processing” at an American Consulate overseas  or will apply for adjustment of status (AOS) in the USA.

H-1B Extension

Most beneficiaries of employment-based EB-2 and EB-3 petition are working in the U.S. on nonimmigrant H-1B status which has 6 years limit.

To be eligible for H-1B extension, Labor Certification or  I-140 Petition has to be filed at least 365 days prior to the H-1B extension request. The H-1B status holder will be able to extend his status in one year increments until final decision is made. The request has to be made on Form I-129 with all necessary documentation for H-1B.

If the beneficiary is from a country for which the Priority Date is not current, such as India or China, and the beneficiary cannot file for adjustment of status, but his/her I-140 is approved, he can renew his H-1B status in three year increments until his Adjustment of Status application is approved or denied. Extensions are allowed in 3 year increments.

Premium Processing of I-140 Petition

Premium processing is not available for certain employment-based categories such as EB-1(c) Multinational Executives or Managers, EB-2 National Interest Waiver, EB-4 Special Immigrants and EB-5 Investors are not eligible for Premium Processing at this time.

CONTACT IMMIGRATION LAWYER TO GET HELP  WITH YOUR I-140 PETITION

Frequently Asked Questions

Does an approved I-140 change your immigration status?

No, an approved I-140 petition will not change your non-immigrant status. You will remain on the same status as before the petition was filed.

Can you file an I-140 and I-485 together?

Yes, this is known as concurrent filing. If you have filed an I-140 petition, you are eligible to file an I-485 (adjustment of status) application. You can do so by submitting the Receipt Notice of the pending I-140 with the I-485 application. Additionally, applications for Employment Authorization (EAD) and Advance Parole may be filed with the I-485 application. Family members (spouse, children) can also file I-485 at this time.

If I-140 and I-485 are filed concurrently, will the USCIS process them simultaneously?

Yes, now a concurrently filed I-140 and I-485 petition will be adjudicated simultaneously. However, if your I-140 is denied, the I-485 will also be rejected.

Can I change jobs  after I-140 approval?

Under AC21 you can preserve your ability to adjust status after changing employers only if your I-485 has been pending 180 days. I-140 approval is not required prior to changing jobs but it is best to wait for I-140 approval. The new job must be in the same or a similar occupational classification. If you’re not sure what constitutes that, there is some explanation on this webpage: Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) – though checking with a lawyer might be prudent.

If you don’t have an I-485 pending (let’s say your I-140 is not current), you actually don’t need to wait 180 days (this is important if you have an I-485 pending). However, your new employer will need to file a new I-140 on your behalf but you’ll keep your priority date.