Form I-140 is a USCIS form that is filed by an employer on behalf of an alien worker (for EB2 and EB3 categories) or filed by an alien individual (EB1-EA or EB2 National Interest Waiver).
When do you need to file form I-140?
An employer will file form I-140 as the second stage in the employment based Green Card process for an employee. This is possible once the labor application is approved.
If an individual is filing this under EB1-EA or EB2 NIW, then it is the first stage in the green card process.
What is needed from the employer during the form I-140 stage?
Form I-140 is basically a stage where USCIS validates that the petitioning employer is financially sound to employ the alien worker after the GC approval.
The employer will need the following:
- Filled Form I-140
- Approved Labor Certificate
- Proof of financial stability - audited financial statement
- Employee's non-immigrant petitions' (such as H1B) photocopies.
Where to file?
If form I-140 is being filed alone, then mail the form to:
USCIS Nebraska Service Center
P.O. Box 87140
Lincoln, NE 68501-7140
If form I-140 is combined with form I-485 (concurrent filing), then mail the form to :
USCIS Nebraska Service Center
P.O. Box 87485
Lincoln, NE 68501-7485
Form I-140 and Instructions for Completing Form I-140 can be found on the USCIS site.
How to get a copy of I-140 approval
FOIA for I140
I-140 and Ability to Pay
Has anybody successfully appealed an I-140 denial?
Frequently Asked Questions
What's up with I-140 processing delays?
- See thread
When can I port from EB3 to EB2?
One can port from EB3 to EB2 after
- Applying for PERM, if you meet both (degree + work) requirements.
- After PERM approval, while applying for 140 with PD porting
- After I-140 approval, either interfile to pending 485 or file new 485.
It should be noted that inter filing is allowed but there is no guarantee of success even after getting PERM or 140 approvals. The USCIS has not given any particular form for inter filing. The only option one has is to send a letter to USCIS with the hope that they will accept the request. There is no receipt number and there is no way to track.
Is a 4 year degree required?
To qualify for an immigrant visa under Employment Based third preference category (EB-3) as a "professional", the job requirement is a Bachelor's degree in the field relevant to the job. In United States, a 4 year degree, is considered Bachelor's degree. I.e., a degree that you get after 16 years of schooling - 12 years to complete High School and then a four-year degree program.
There are several Indian bachelor's degrees (and a few in other countries as well) that are given after three-year programs, i.e., 12 years of secondary education and 3 year college program. Thousands of computer professionals from India possess this three-year degree and a professional "diploma" in the field of computers/software from a recognized institution of one more years of duration. Accredited evaluating agencies in the US take the three year degree together with the "diploma", combine them, and certify as an equivalency of a US Bachelor's degree. Such 3-year degree plus 1-year diplomas was acceptable to the USCIS for employment-based Immigrant Visa Petitions as well, both EB-3 (Professional) and EB-2 (Advanced degree professional - to meet BS requirement plus five years experience). But in some cases, USCIS has rejected a number of EB-2 and even EB-3 cases where the alien did not have a four-year degree but a combination of three plus one as described above.
For Green Card it all depends on the requirements listed on the Labor Certification application where the employer lists a BS degree as the requirements, but the USCIS position is that if you specify a degree you should have that single degree. To overcome this, if it is listed as a BS or foreign equivalent, most of the time, the employer can argue successfully that the foreign equivalent does not necessarily have to be a single degree. And this may suffice for an EB-3 position.
Some times it make sense to start the Labor Certification for a non-professional position with comparable job duties, such as EB-3 skilled worker (which needs only two years experience - no academic requirement at all). Remember, this can be done also with the requirement of an Associate degree.
In short a lot will depend on how the Labor Certification application is filled.
The Employer must make sure that the job requirements and experience required for the job are in line with the Department of Labor (DOL) guidelines. The job requirements should not exceed those as described in DOL's Standard Occupational Classification (SOC) system. If they exceed the SOC standards, then the employer must justify a "business necessity" for the excessive requirements by showing how the requirements are related and necessary for the position.
Ability to Pay
The Employer should have the ability to pay the proffered wage as of the date of filing the Labor Certification. This should be proven at the Immigrant Petition stage, i.e., the Employer should prove at the Immigrant Petition stage that they had the ability to pay the proffered wage as of the date of filing the Labor Certification, and continue to have such ability.
The employer should be able to document the ability to pay the offered wage from the date of filing of the Labor Certification application. This documentation is usually required at the time of filing the Immigrant Visa Petition. It is employers responsibility to prove that the employer has the ability to pay the proffered wages. If the alien is presently working for the employer (say, on H1B visa), the salary the employer pays can definitely be taken into account while documenting employer's ability to pay the proffered wages. The employer must be careful if there are any shortfalls.
If the alien is not working for the employer, then the employer should have enough profits, or other acceptable assets, to cover the alien's entire salary. Nowadays, USCIS also asks employers to prove the ability to pay not only the alien in question, but also to the beneficiaries of ALL other pending Immigrant Visa Petitions filed by the employer. If the profit figures are not enough, then other financial documentation such as audited financial statements, bank statements, other evidence, etc. can be submitted.
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