Frequently Asked Questions of Form I-140(Immigrant Petition for Alien Worker) and Concurrent Filing of I-140 and I-485

What is Form I-140?

The Form I-140, Immigrant Petition for Alien Worker, is used to petition U.S. Citizenship and Immigration Services (USCIS) to classify an alien beneficiary as eligible for an immigrant visa based on employment. For EB1-A Alien of Extraordinary Ability and EB-2 National Interest Waiver, the alien can do self-petition. For other employment-based immigration categories, the foreign national needs an employer sponsor to file the I-140 petition.

How should I file I-140?

An I-140 Form can be filed electronically or by mail, but supporting evidence has to be sent to service centers. If you are e-filing Form I-140, it will automatically be routed to the appropriate Service Center, and you will receive a receipt indicating the location to which it was routed. For e-filed petitions, it is very important to review your filing receipt and receipt number and make specific note of the receiving location. All further communication, including submission of supporting documents, must be directed to the receiving location indicated on your e-filing receipt.

Can a petitioner requests premium processing for the I-140 petition?

Yes. If a petitioner requests Premium Processing Services for Form I-140, the petitioner must also file Form I-907, Request for Premium Processing Service. Send Form I-140 and I-907 together to the address listed in the Form I-907 filing instructions. The petitioner should NOT send requests for Premium Processing to a Lockbox facility.

Can a petitioner requests premium processing when the I-140 is pending?

Yes. If a petitioner have already filed Form I-140 and he/she wishes to request Premium Processing Service, file Form I-907 with the Service Center where the Form I-140 is pending. See Form I-907 filing instructions for further information. A petitioner should NOT send requests for Premium Processing to a Lockbox facility. The petitioner must include a copy of Form I-797C, Notice of Action, which shows your Form I-140 was accepted, or a copy of the transfer notice, if applicable, showing the location of Form I-140. To ensure that Form I-907 is matched up with the pending Form I-140, the petitioner must fully answer questions 1 through 5 in Part 2 of Form I-907. If this information is not provided, Form I-907 will be rejected.

What steps can I take to ensure that my Form I-140 petition will not be rejected by USCIS?

Be sure to submit your Form I-140 petition with correct information and well-organized supporting documentation or your petition may be rejected or a final decision can be delayed.

Below are tips to ensure that your Form I-140 petition is accepted for processing:

1. Use the most current edition of the form, although older editions may be accepted.
2. Make sure you follow the instructions carefully in regards to which location to file your Form I-140 petition.
3. Select only one visa preference category in Part 2 of the Form I-140. (USCIS will reject the Form I-140 petition if Part 2 is left blank or when more than one visa preference category is selected in Part 2.)
4. Respond to all questions and provide information in all of the “answer“ and “check“ boxes. Please write “none“ or “n/a“ in an answer box if a question does not apply to you.
5. Print or type information using black ink only. Do not “highlight“ or “background shade“ your entries.
6. Make sure the petitioner(sponsoring employer or yourself) signs the Form I-140.
7. Include the correct fee specified in the form instructions. If you file the petition with other related applications, attach the fee to the petition by paper clip or staple, and indicate the name of the applicant on the payment document (i.e., in the memo field).
8. Submit one check per application. If more than one petition or application is filed using a single check, and any of the forms are found to be improperly filed, ALL forms will be rejected.
9. Submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, if applicable (with original signatures of both the representative and the applicant or petitioner).
10. For petitions that are filed electronically, send the supporting documentation to the address identified in the directions for e-filing. Do not submit any other paper-filed applications or petitions with the supporting documentation for the electronically filed I-140.

What if an incorrect visa category is selected in Part 2 of the Form I-140?

After USCIS receives the Form I-140 petition, it will issue and mail a Form I-797 Receipt Notice to the petitioner or the Form G-28 representative. The receipt notice will indicate the visa category that the petitioner requested on Part 2 of their Form I-140. If it is not correct, then a petitioner should immediately request a change in visa classification through the USCIS National Customer Service Center [1-800-375-5283 1-800-767-1833 (TTY)] prior to the adjudication of the petition.

After the request, the determination regarding whether to change the visa preference classification will be made by USCIS, based on the totality of the record. Requests for a change in visa preference category cannot be granted in petitions that have already been adjudicated.

Can the petitioner request consideration of multiple visa categories?

Yes. But if a petitioner wants to classify the alien beneficiary under multiple visa preference categories, he/she must file a separate Form I-140 petition, with the required fee and supporting documentation for each requested visa category.

What special steps should be taken to file a Form I-140 petition that requires a DOL-approved labor certification?

The labor certification must be submitted with the Form I-140 during the 180-day validity period annotated at the bottom of every page of the labor certification by DOL. Petitions that are not supported by a valid labor certification will be rejected.

How can I ensure that my Form I-140 petition that requires a DOL-approved labor certification is accepted for processing?

Here are some tips to ensure that the Form I-140 petition that requires a DOL-approved labor certification is accepted for processing:

1. Package your Form I-140 with the Form G-28, if any, on top, followed by the form itself. Place the original labor certification directly under the I-140 petition, followed by the other supporting documentation.
2. In instances where the ending date of the labor certification's validity period expires on a Saturday, Sunday or legal holiday, petitions will be accepted with the labor certification on the next business day. Petitions filed with expired labor certifications filed after the next business day will be rejected.
3. DOL-approved labor certifications that are filed electronically with DOL must be signed by the employer, the agent/representative, and the alien beneficiary prior to submission with the I-140 petition. Form I-140 petitions will be rejected if filed with unsigned labor certifications. If an I-140 is inadvertently accepted with an unsigned labor certification, the petitioner will be issued a Request for Evidence (RFE) requesting the required signatures.
4. Place a brightly colored piece of paper directly under the Form I-140 petition requesting in large bold font a duplicate labor certification if you need one.
5. If the petition that is being filed is an amended petition and the original labor certification has already been submitted with another Form I-140 petition, place a brightly colored piece of paper directly under the petition that indicates in large bold font that the petition is an amended petition and that the labor certification has already been submitted. Also provide the receipt number of the previously filed petition, if available.

Is there any particular way to organize the evidence with the petition I-140?

The various categories of evidence provided in support of the petition should be grouped according to the area of eligibility that the category of evidence is seeking to establish.

A petitioner may follow the tips below for how to organize the evidence:

1. Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.
2. If providing photocopies of documents, please provide clear legible copies. (Note: Original DOL-approved labor certifications, signed by the petitioner, alien and representative, if any, must be submitted if they are required by the visa category.)
3. All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
4. If the alien beneficiary may be entitled to an earlier priority date based on a previously approved Form I-140 petition, provide a statement to that affect, along with a copy of the Form I-797 approval notice for the previous petition. (See 8 C.F.R. 204.5(e))
5. If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portion(s) that cite the alien's work and the “works cited“ or bibliography.
6. Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

What eligibility criteria should be identified in the case of EB1-A Alien of Extraordinary Ability petitions in Form I-140?

In the case of Alien of Extraordinary Ability, identify which of the ten regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion. In addition, provide a statement and evidence that the alien beneficiary is coming to the U.S. to continue to be employed in his/her area of sustained national or international acclaim.

What eligibility criteria should be identified in the case of EB1-B Outstanding Professor or Researcher petitions in Form I-140?

The I-140 petition for Outstanding Professor or Researcher should include the follow documents:

1. The petition should identify which of the six regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.
2. Provide evidence that the alien has at least three years of experience in teaching and/or research in the academic field.
3. Submit a copy of the petitioner's actual job offer issued to the alien beneficiary. This letter or contract must set forth the title, terms and conditions of the position offered.
4. Send documentation as outlined above for each position if the beneficiary has changed positions since s/he was initially hired.

What eligibility criteria should be identified in the case of EB1-C Multinational Executive or Manager petitions in Form I-140?

The I-140 petition for Multinational Executive or Manger should include the follow documents:

1. Provide evidence and a cover letter that describes the name of the foreign employer, the position offered in the U.S., the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S. State the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc.
2. Provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition.

What eligibility criteria should be identified in the case of EB-2 Alien of Exceptional Ability petitions in Form I-140?

The I-140 petition for Alien of Exceptional Ability should include the follow documents:

1. Identify which of the six regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.
2. Provide evidence that the alien beneficiary meets the minimum education and experience requirements specified in the supporting labor certification if filing under Form I-140 Part 2. option d.

What eligibility criteria should be identified in the case of Member of the Professions Holding an Advance Degree or an Alien of Exceptional Ability, requesting a National Interest Waiver Alien of Exceptional Ability(EB2-NIW) petitions in Form I-140?

The I-140 petition for Member of the Professions Holding an Advance Degree or an Alien of Exceptional Ability, requesting a National Interest Waiver Alien of Exceptional Ability should include the follow documents:

1. Identify how the alien qualifies for classification as a member of the professions with an advanced degree (e.g. the alien holds an advanced degree, the alien holds a Bachelor's degree in addition to five years of progressive experience, or the alien qualifies as an alien of exceptional ability).
2. Identify each of the three criteria (e.g. intrinsic merit, national scope, and national interest) that must be satisfied and provide the evidence needed to satisfy each criteria. (See 8 C.F.R. 204.5(k) and Matter of New York State Department of Transportation (NYSDOT), 22 IN Dec. 3363, Int. Dec. 3363 (Act. Assoc. Comm. 1998).

Can a petition be withdrawn?

Yes, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS .

How can a petitioner request the withdrawal of a Form I-140 petition?

The petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS

Withdrawal requests should include:

1. A statement indicating that the Form I-140 petitioner wishes to withdraw the petition;
2. The Form I-140 petition receipt number;
3. The name, address and phone number of the petitioner;
4. The name of the alien beneficiary;
5. The alien registration number of the alien beneficiary, if known;
6. The petitioner's signature or the Form G-28 representative.

How can I apply for adjustment of status after Form I-140 approval?

Application Form I-485, application for adjustment of status, is the document you are required to file after your application for immigration based on employment is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc.

With the change of immigration regulation, rules on adjustment of status become much more restricted. You must provide visa records to establish your and family members' continuous lawful status since you entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.

My self-petitioned I-140 got approved, and my I-485 is still pending, may I leave my current job?

For self-petitioned NIW or EB1-A application, the job change will not affect the pending I-485. The applicants enjoys a much broader flexibility due to the different nature of their petitions. The I-485 petition will not depend on which employer you work for during the process.

But it does not mean that you can work on any job you like after the I-485 submitted. You need to prove and maintain the required qualifications for EB1-A application, ie., you still work in the same field as the time you filed I-140. If you later get a Request For Evidence (RFE) or an interview for the I-485 petition, and you no longer maintain the qualifications set in the original I-140 petition, your I-485 may be rejected.

If my employer sponsored my I-140 petition, may I change employers when I-485 is pending?

Yes. Even if your employer sponsored your petition, an alien beneficiary of a pending or approved Form I-140 petition whose application for adjustment of status (Form I-485) has been filed and remains un-adjudicated for 180 days or more and who seeks to change jobs to a new job that is the same or similar occupational classification may submit a request to “port“ under AC21.

Who is eligible to submit a request to change employers under INA 204(j) when I-485 is pending, which is commonly known as “porting“ under INA 204(j)?

An alien beneficiary of a pending or approved Form I-140 petition whose application for adjustment of status (Form I-485) has been filed and remains un-adjudicated for 180 days or more and who seeks to change jobs to a new job that is the same or similar occupational classification may submit a request to “port“ under AC21.

How can an alien beneficiary submit a request to change employers under INA 204(j)?

The petitioner should take the following steps to request to change employers under INA 204(j):

1. An alien beneficiary may supplement the Form I-485 record of proceeding with documentation relating to the new job offer that forms the basis of the INA 204(j) portability request.
2. The alien beneficiary or the Form G-28 representative for the Form I-485 application must send a letter from the new intended permanent employer specifying the job title and duties of the offered position, the minimum educational or training requirements, the date the alien beneficiary began (or will begin) employment and the offered salary or wage. The letter must be issued and signed by the appropriate authority within the new employer's organization who is authorized to make or confirm an offer of permanent employment.
3. A copy of the Form I-140 approval notice or receipt notice and a copy of the Form I-485 receipt notice should be provided to locate the alien's beneficiary's case file and to confirm that the application has been pending for at least 180 days.

May an alien beneficiary request to “port“ to a different employer or job under INA 204(j) if his or her Form I-140 petition is still pending?

Yes, an alien beneficiary may request to change employers under INA 204(j) while the Form I-140 petition is pending (in the case of concurrent filing of I-140 and I-485), as long as his or her Form I-485 adjustment application has been pending for at least 180 days. However, in order for the Form I-140 petition to “remain valid“ for INA 204(j) purposes, it must be determined that the petition was “valid“ when filed, i.e., that the I-140 petition was filed on behalf of an alien who was entitled to the employment-based classification and that the petition contained a valid job offer at the time that the petition was filed. Therefore, the petition must be approved prior to a favorable determination regarding a portability request made under INA 204(j).

How does USCIS determine if an I-140 was valid when processing unapproved I-140 petitions that were concurrently filed with I-485 applications in the portability context?

If evidence is submitted to USCIS that an alien seeks to adjust on the basis of a new job offer under INA 204(j), then, the adjudicator will first determine if the alien is the beneficiary of an approved I-140 petition. If he or she is not, the adjudicator will proceed to determine whether the unapproved, pending I-140 was approvable when filed (this may involve issuance of an RFE if the I-140 cannot be approved without further evidence of its merits). Then, only if the I-140 can be approved, the adjudicator will adjudicate the adjustment of status application and also determine if the new position is the same or similar for I-140 portability purposes.

Can a successor employer use a predecessor employer's approved labor certification to file an I-140 petition on behalf of the alien beneficiary named on the labor certification?

Yes. But he successor employer must establish a successor-in-interest (SII) relationship with the predecessor employer.

How can a successor employer establish a successor-in-interest (SII) relationship with a predecessor employer in order to use that employer's approved labor certification when filing an I-140 petition on behalf of the alien beneficiary named on the labor certification?

The latest USCIS issued memorandum provides the following factors to be considered in determination whether a valid SII exists:

1. The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification;
2. The successor bears the burden of proof to establish eligibility in all respects, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor's ability to pay the proffered wage, as of the date of filing of the labor certification with DOL, and;
3. For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.

In the case of changing employers, may an alien beneficiary retain the priority date established in a previously approved Form I-140 petition?

Generally, the alien beneficiary may retain the priority date of the predecessor's approved Form I-140 petition, if any. Generally, an alien beneficiary may also retain the priority date established by an approved E12 (Outstanding Professor or Researcher petitions) or E13(Multinational Executive or Manager) petition for subsequent petitions filed in his or her behalf by a new employer in the E12 or E13 categories.

Is the SII analysis adversely impacted if the job title for the position with the successor company differs from the job title noted in the predecessor company's labor certification?

When determining whether the job opportunity is the same as the job opportunity originally offered on the labor certification, adjudicators will examine the job duties of the position to determine if the job is still the same. Changes in job title, and other ancillary changes such as a change in computer software used in the job are not in and of themselves disallowed. Further, changes in the wage offered due to wage increases that have occurred over the passage of time do not impact the determination as to whether the job is the same.

What is a “Request for Additional Evidence“?

Sometimes the USCIS is not convinced that the alien petitioning category has met the burden to prove that an applicant qualifies for the category. In such cases, they will typically submit a “Request for Additional Evidence“ or “Request for Evidence (RFE)“ seeking certain forms of evidence that the USCIS finds lacking. An applicant should take great care to present a strong case, so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how a USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a “Request for Additional Evidence“.

It is critical to appropriately and proficiently reply the USCIS issued Request for Evidence, incorrect response of the RFE will directly result in your I-140 petition rejection.

Can I file I-140 concurrently with I-485?

Yes, USCIS permits the concurrent filing of a Form I-140 and Form I-485, adjustment of status application. However, only the first three preference groups (EB-1, EB-2, EB-3) are qualified for concurrent filing.

In addition, the I-485 may be filed while the I-140 is pending if a visa number later becomes available. The concurrent filing rule allows USCIS to issue an Employment Authorization Document (EAD) and advance parole travel authorization while the I-140 petition is pending, if filed along with the I-485.

If I file I-140 concurrently with I-485, will both petitions be adjudicated simultaneously? What if my visa is not current?

The USCIS has stated that adjudication of a concurrently-filed Form I-140 is not dependent on the adjudicative readiness of the Form I-485 The guidelines allow the USCIS to adjudicate and approve the visa petitions separately in cases in which a visa becomes unavailable after the concurrent filing. In these cases, the I-140 visa petition will be approved and the I-485 will be held in abeyance until such time as a visa number becomes available.

In the case of I-485 abeyance after I-140 approval, can I file EAD and/or AP?

Yes. In the case of I-140 and Concurrent Filing, applicants will be eligible to apply for interim benefits such as employment authorization and advance parole while the I-485 application is held in abeyance.

What are the primary advantages of concurrent filing?

There are several advantages of concurrent filing of I-140 and I-485, here are the primary ones:

File I-485 earlier: You, your spouse, and your unmarried children under 21 can file your I-485 applications (i.e., green card applications) at the same time your employer or you file an I-140 Immigrant Petition for Alien Worker. (Normally, the employer files the I-140, but you can self-file your I-140 under certain categories, such as Aliens of Extraordinary Ability and National Interest Waiver.) Also, the concurrent filing rule allows you, your spouse, and children to file your I-485s while a previously filed I-140 is still pending.

Obtain work authorization(EAD) and travel documents(AP): When you file your (and your family members') I-485, you can also file for Employment Authorization Documents (EADs) and travel documents(AP). The availability of an EAD is a major benefit for spouses who could not otherwise work legally (i.e., for spouses who do not already have an H-1B, O-1, J-1, etc.). Advance Parole can be a major benefit for those who could not otherwise travel (e.g., are out of status) or who do not want to risk getting stuck overseas because of security checks or other problems at a U.S. consulate while applying for a new H-1B visa.

Might be able to leave job earlier: Having an EAD for the principal beneficiary does not necessarily mean you can leave your current job, but in conjunction with the portability provision, the beneficiary of a pending I-485 can leave his or her current employer and take a new job in a same or similar occupational classification after the I-485 has been pending for at least 180 days. Please note, however, that many issues related to portability remain unresolved, so you should be very careful before you leave your current position. If you leave too early, your (and your family members') I-485 (and everything else) may end up being denied. On the other hand, in some special cases (e.g., Aliens of Extraordinary Ability or National Interest Waiver), you might be able to leave your employer even before the I-485 is filed. Job-changing issues are complicated, however, so it is critical to get good legal advice before leaving your job any time before you get your green card.

What happens to my I-485 filing if my I-140 is rejected?

If the I-140 petition is rejected in the concurrent filing case, accompanying I-485 will also be rejected.