Form I-140

The Form I-140 petition must be accompanied by what is termed "initial evidence". This evidence depends on the type of employee being sponsored, but for instance (in some cases) includes an award given to the employee or publication by the employee that certifies they are someone of extraordinary ability. In many cases (see table above), part of the initial evidence is a labor certification, which establishes, among other things, that there are insufficient workers in the US to fill the position the alien employee plans to take.[1] In cases where a labor certification is required, the petition is said to be labor certification-based.

In labor certification-based petitions, a labor certification must be filed and approved by the US Department of Labor before Form I-140 can be submitted. It is possible to establish a successor-in-interest relationship between the successor employer and predecessor employer, in which case a predecessor's labor certification can be used.

Additional evidence that must be provided includes the employer's financial data, proof of the employee's education and work experience, as well as evidence that the employer can pay the proffered wage to the employee.[3]

The alien can in addition self-petition in the cases of EB1-A Alien of Extraordinary Ability or EB-2 National Interest Waiver.

The form must be signed to be valid.[1]

Form I-907, Request for Premium Processing Service, is required if the petitioner is requesting Premium Processing.[1]

Form I-140 may be filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status.

Form I-140 can be filed by paper or electronically. If the form is filed electronically, it will be sent to an appropriate service center.

The filing address for Form I-140 depends on whether Form I-140 is being filed on its own or concurrently with Form I-485. The filing address can also differ by the state the beneficiary will work in for Premium Processing.[4]

The fee for filing Form I-140 is $700, and must be payable in US currency to the US Department of Homeland Security.[1] There is also a $2,500 fee for Premium Processing (next section).

However, this fee does not include:

• In the case the beneficiary is already in the United States, the fee for Form I-485 (filed separately by the beneficiary, so not part of the petition), which can range from $750 to $1140 depending on the category, plus an $85 biometrics fee.[5]
• In the case the beneficiary is not in the United States, the immigrant visa application processing fee that, as of May 2015, is $325.[6]
• In the case the beneficiary is not in the United States, the $220 USCIS immigrant fee, which is needed to process the immigrant visa packet and produce and send to the applicant the Green Card.[7]

The USCIS offers a Premium Processing Service at an additional fee of $1,440 for Form I-140 petitions. Premium Processing is only available for this form and for Form I-129 (non-immigrant worker). The Premium Processing Service promises an initial review from the USCIS within 15 calendar days of receipt of the form, after which time it may approve, deny, or issue a Request For Evidence or Notice of Intent to Deny.[8] USCIS will refund the Premium Processing Service fee if processing takes longer than 15 days. If the fee is refunded, the relating case will continue to receive expedited processing.[8] The time begins from the receipt of Form I-907 and the associated fee.

The Premium Processing Service was introduced in 2001 for Form I-129[9] and extended to Form I-140 in 2006.[10]

Premium Processing does not guarantee a final adjudication; it only provides a time limit for initial review of the petition. In other words, the 15 calendar day guarantee is only for the initial review of the petition, which may result in approval, denial, or the issuing of a Request For Evidence or Notice of Intent to Deny.

For immigrant visa allocation, the Form I-140 petition must be approved and the priority date assigned to that petition must be before the cutoff date (which depends on the country of chargeability and the visa category). Since the cutoff date and the processing time for Form I-140 petitions are independent, the wait time for Form I-140 to be processed is the later of the visa number availability time (the cutoff date) and the Form I-140 processing time. Therefore, Premium Processing can expedite the overall process of obtaining lawful permanent resident status when the Form I-140 processing time is longer than the visa number availability time. In other words, if there is no visa number availability wait time, either because the category is uncapped or the caps are nowhere near being met, then Premium Processing is advantageous. On the other hand, for a visa category with a country of chargeability where the current cutoff date is far in the past (i.e. there is a long queue), Premium Processing would not expedite the overall process because the cutoff date overwhelms even the standard processing time.

It is possible to apply for Premium Processing on an already-submitted application. In this case, the clock for Premium Processing begins when the Premium Processing is requested.

The approval rate for aliens of extraordinary ability has ranged from 47% to 62% during the years 2005–2010. For outstanding professors or researchers, this has ranged from 90% to 95% during the same years.[12]

USCIS processes Form I-140 on a first-come, first-served basis, so at any given time, the date received for the forms that have just finished processing provides a good estimate of processing time. USCIS breaks down Form I-140 into eight categories and reports processing times separately for each:[13]

• Extraordinary Ability (EB-1)
• Outstanding Professor or Researcher (EB-1)
• Multinational Manager or Executive (EB-1)
• Advanced Degree Professional (EB-2)
• Skilled or Professional Worker (EB-3)
• Unskilled Worker (EB-3)
• Advanced degree or exceptional ability requesting a National Interest Waiver (EB-2)
• Schedule A Nurses (EB-2 or EB-3)

The processing time is on average about four months.[14]

There are separate processing times reported for the appeals processing. As of February 1, 2016, the processing times for administrative appeals for all categories of Form I-140 is 6 months or less.[15]

The initial response from the USCIS to a Form I-140 is one of these four:

• Approval
• Denial
• Request for Evidence (RFE): Generally, evidence is requested about the relationship between the petitioner and beneficiary. For instance, for marriage-based petitions (where one spouse is petitioning for another) evidence that the marriage actually occurred, and that there was no marriage fraud, is sought.
• Notice of Intent to Deny (NOID): This is an advance notice that the petition is likely to be denied, along with reasons for the proposed denial. The petitioner is given a limited amount of time to respond.[16]

In the case of a RFE or NOID, the petitioner's response will be taken into account by the USCIS when deciding whether to approve or deny the petition.

Based on new evidence suggesting that the original petition was fraudulent, the USCIS may issue a revocation of petition (i.e., revoke the petition entirely) or send the petitioner a Notice of Intent to Revoke, to which the petitioner may respond with additional evidence or challenge the reasons. The typical impetus for the USCIS to reconsider an approved petition is when a United States consular officer evaluating the beneficiary's visa application based on the petition encounters evidence suggesting that the petition was fraudulent. If the consular office finds such evidence, he or she returns the petition to USCIS along with the reasons the petition appears fraudulent, and issues a Section 221(g) quasi-refusal to the applicant (note that this is relevant to cases 2 and 3, and not to case 1 where the beneficiary is already in the United States).[17] The following are worth noting:

• A consular officer may reject the beneficiary's visa application without returning the petition to the USCIS. This is because the consular officer has many potential grounds for rejecting the application without calling the legitimacy of the petition in question.
• After the consular officer returns the petition to the USCIS, the USCIS may decide that the petition is valid and tell the consular officer that. if the USCIS revalidates the petition, then the consular officer must use this information and proceed with the same visa application (i.e., the beneficiary need not re-apply for a visa).

It is possible to reapply for a Form I-140 petition if the original petition results in denial or revocation. When reapplying, all previously-submitted evidence must be resubmitted, and filing fee must be paid again. In addition, the receipt number from the previous I-140 petition must be given.

If there is additional evidence available to the petitioner that could lead to the original petition being approvable, it is possible to file a motion to reopen or reconsider the petition. For this, Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of the denial (15 days in case of revocation).[18]

Third, it is possible to appeal the decision, in which case Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of the denial (15 days in case of revocation) for processing by the USCIS Administrative Appeals Office (AAO). Note that although the form submitted is the same for appeals or motions, the way the form is filled makes clear whether the form is being used for an appeal or motion.[18] In case of an appeal it is not necessary to submit new evidence, since the claim is that the original denial or revocation was incorrect in light of the evidence available at the time. The AAO has a processing time goal of 6 months or less for appeals, but current processing times are not reported.[19] Appeals have historically taken up to 35 months to be adjudicated; for this reason law resources often recommend reapplying.

Finally, if the AAO returns an adverse decision, it is also possible to file a motion to reconsider with the AAO itself.[18]

The AAO is the final point of appeal within USCIS. Beyond this, the decision can be appealed within the federal judicial system.[20] An example of an appeal was the case of Kazarian v. USCIS (2010).

Denial of an I-140 petition does not terminate an alien's nonimmigrant status (e.g. H-1B status).