Immigrant Worker Petition Overview


Stage II: Filing the I-140 Petition for Permanent Employment.

1. General Filing Procedure.

  • After an employer has completed Stage I, the Labor Certification Application process (PERM), it may then move on to Stage II, filing the I-140 Immigrant Petition with USCIS.
  • Currently, all I-140 petitions are filed either at the Nebraska Service Center or the Texas Service Center, depending on the location of the foreign citizen’s permanent employment. To determine where an employer should file the I-140 petition, consult the USCIS Direct Filing Addresses for Form I-140.
  • The petitioning employer must submit evidence that the foreign citizen meets the specific requirements for the relevant Employment Based preference category. For Second and Third Employment Based preferences, the petitioner must also submit evidence that the job offer requires the type of credentials normally required for that position in the industry.
  • The petitioner must also submit any approved Labor Certification Application (when applicable). If eligible for a Schedule A occupation, such as a Registered Nurse, the petitioner must include evidence of complying with the posting provisions outlined in 20 C.F.R. § 656.222(b)(2).

2. Ability to Pay Requirement.

  • In addition to the requirements above, when an I-140 petition requires an offer of employment, the petitioner must submit evidence that the prospective U.S. employer has the ability to pay the proffered wage.
  • The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.
  • Small and medium-sized employers must prove their ability to pay the prevailing wage by submitting copies of annual reports, federal tax returns, or audited financial statements.
  • For companies with 100 or more workers, USCIS may accept a statement from a financial officer of the petitioner in lieu of these documents regarding the petitioner’s ability to pay.
  • USCIS may request additional evidence, such as profit/loss statements, bank account records, or personnel records.

3. Concurrent Filing of I-140 and I-485

  • In certain situations, USCIS may allow a petitioner to file applications under both Stage II and Stage III of the green card process. When an immigrant visa number is immediately available, a petitioner may concurrently file Form I-140 and an Adjustment of Status application (Form I-485). See 67 Fed. Reg. 49,561 (July 31, 2002).
  • If an immigrant visa number is not immediately available, then the I-140 and I-485 cannot be concurrently filed. However, the I-485 could be filed while the I-140 is pending if a visa number later becomes available. Read more about Immigrant Visa Numbers.
  • This concurrent filing rule allows the filing of applications for an Employment Authorization Document (EAD) and Advance Parole travel authorization while the I-140 petition is pending.

4. Interview of Employer & Foreign Citizen.

  • USCIS can require an interview with the employer and foreign citizen if it has questions concerning any aspect of the case, such as the intention of the parties to undertake the employment relationship, the qualifications of the foreign citizen, or the nature of the position. However, in-person interviews are rarely required for employment-based immigrant cases.

5. Approvals and Denials

  • An approved I-140 petition will be forwarded to the National Visa Center of the Department of State if the petition requested to pursue the last stage of the green card process via immigrant visa processing.
  • If the I–140 petition indicated that the foreign citizen has filed or will file an I-485 Application for Adjustment of status, USCIS will retain the approved visa petition for consideration with the I-485 application. If an immigrant visa number is available, and the foreign citizen has not yet filed Form I–485, USCIS will issue an I-797 notice instructing the foreign citizen to file the Form I–485.
  • The petitioner may appeal the denial of an I-140 petition to the Associate Commissioner for Examinations. USCIS must inform the petitioner “in plain language” of the reasons for denial and of its right to appeal.
  • Unless revoked, an employment-based I-140 petition is valid indefinitely.

6.  References

Revised Feb. 4, 2008.