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Some Important Issues for Form I-140 Petition

1. The Form I-140 Petition in EB-2 Immigrant Category 

The major advantage of filing form I-140 petition in EB-2 immigrant category may be to get the Green Card faster than the EB-3 category, because of more immigration visa number available in EB-2 than in EB-3 category, in most situation. In the employment-based immigration, the interest in the EB-2 based I-140 petition has substantially increased, and there are a few things which the EB-2 aspirants must bear in mind before one considers this option.

In the labor certification application, employer must require either a master degree or equivalent, or alternatively a bachelor degree with 5 years of progressive experience. In the labor certification application, equivalent means an equivalent foreign degree. Thus, unless the alien proves that he/she has a master degree from a U.S. institution or equivalent degree from a foreign academic institution, he/she will not be able to file EB-2 I-140 petition. 

If the employer required a bachelor degree or equivalent plus 5 years of progressive experience as an alternative to a master degree requirement, the requirement of a bachelor degree or equivalent can be proven only if he/she attained a single bachelor degree either from a U.S. academic institution or a foreign academic institution.

2. The H-1B Extension and the Form I-140 Petition 

Most of the employment-based immigrants in the categories of EB-3 and higher up are working on H-1B nonimmigrant status, and in an effort to deal with their nonimmigrant status and employment authorization during the period when their immigrant visa numbers are unavailable, people should know what options they would have to extend their H-1B status beyond six years.

The form I-140 petition will not only affect the green card process, but will also change how those seeking extensions of H-1B visa beyond the normal six-year limit. Eligibility for H-1B visa extensions requires the filing of an employment-based form I-140 immigrant visa petition at least 365 days prior to the H-1B extension request, to take advantage of the extensions beyond the six years.

When people talk about the H-1B extension beyond six year limit, they often call it 7th Year Extension and extension in one-year increment pending labor certification application for 365 days. However, this one-year increment extension benefit can be sought only by those who are not eligible for extension of H-1B beyond six years in three-year increment. The three-year increment H-1B extension is available to those whose I-140 petition has been approved, but who cannot complete the green card process because of the visa number unavailability. 

3. How to Effectively Organize the Evidence Accompanied with Form I-140 Petition

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 (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.

2) 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.

3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. Include the title page and the portions that cite the alien's work. 

4) 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. 

4. The Premium Processing Service of Form I-140 Petition

U.S. Citizenship and Immigration Services (USCIS) has started the form I-140 petition Premium Processing Service, which allows U.S. employers to pay a $1,000 Premium Processing fee in exchange for 15-calendar-day processing of their case. USCIS accepts Premium Processing requests for form I-140 petitions involving one of two employment-based immigration categories within the employment-based preference. Those categories are:

1) EB-3 Professionals, i.e. immigrant workers with bachelor degrees who are members of the professions, and 

2) EB-3 Skilled Workers, i.e. immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience. 

USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:

  • Whose sixth year will end within 60 days;

  • Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21); and

  • Who are ineligible to extend their H-1B status under section 106(a) of AC21.

Section 104(c) of AC-21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC-21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Employers file for both categories using Form I-140 - Immigrant Petition for Alien Worker. Premium Processing is not available to other workers in the EB-3 category for jobs that do not require two years of education, training or experience. Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a Request For Evidence (RFE), or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. 

5. Foreign Degree Deemed Equivalent to U.S. Bachelor’s Degree

Also, the submitted documents should analyze and explain the exact nature of the alien applicant's education to the detail extent, including an explanation of the significance of the diploma obtained by the alien applicant prior to admission to the Bachelor program.

One way to prove a foreign bachelor degree in lesss than 4 years deemed equivalent to U.S. Bachelor’s degree is to show the completion of a diploma at the accredited institution that was equivalent to college-level coursework, if the alien applicant completed a diploma program or class prior to the Bachelor program. Then the applicant may win approval of Form I-140 application by showing the USCIS that the alien worker's completion of the diploma at the accredited institution was equivalent to college-level coursework. The diploma should take into consideration by the Bachelor program when determining the required coursework for this program.

Also, if an alien aplicant had been admitted to the Bachelor program at an advanced standing level, then it may permit his ot her completion of the 4-year degree program in 3 years. This is similar to having college credits transfer or obtaining credits through advanced placement testing.  Therefore, it is posible to show that the alien's Bachelor degree is the equivalent of a 4-year program, similar to a 4-year degree program from an accredited U.S. university.

6. The Request For Evidence (RFE) and Notice of Intent to Deny from USCIS

1) Request For Evidence (RFE)

An USCIS adjudicator may issue a Request For Evidence (RFE) on Form I-140 petition cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.

A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

An Form I-140 petition case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.

2) Notice of Intent to Deny 

A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.

The immigration law does not restrict the time you can file a Form I-140 petition again after the rejection of your previous application. A previous rejected Form I-140 petition does not bar you from submitting another I-140 petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.

7. The Alien Registration Number

An alien applicant should receive a A# (or A Number) from USCIS after your Form I-140 immigrant visa application approval. The A Number is the Alien Registration Number. The “A” number is used by the Department of Homeland Security and USCIS for the purpose of identifying aliens. It alone does not serve as employment authorization nor is it evidence of legal status or permanent residency. After your I-140 approval, you will be given an A number by USCIS.

Aliens are also often confused Social Security Numbers (SSN) with alien registration numbers (or “A” number) issued by the Department of Homeland Security. An alien is issued an “A” number when he or she is applying for immigration, is put under removal proceedings, or under other special alien registration programs. The formal “A” number contains eight digits and will occasionally begin with a “0” and have a total of 10 digits. In general, one may only have one formal “A” number. In multiple applications cases, however, an alien may receive multiple “A” numbers.

8. Apply for Adjustment of Status by Using Form I-485 or Consular Processing after Form I-140 Approval

1) The Form I-485 Application

USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on Form I-140 is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.

An immigrant  visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for Form I-140 application is not always current for some alien applicants coming from such countries as China and India.

The visa bulletin of U.S. Department of State summarizes the availability of immigrant numbers. U.S. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security reports applicants for adjustment of status. The immigrant visa numbers allocations were made, to the extent possible, in chronological order of reported priority dates.

The Visa Bulletin is generally published around the middle of the preceding month. The Visa Bulletin reflects available visa numbers for cases with "priority dates" before the listed dates. To check the current Visa Bulletin, please visit http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html

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

2) The Consular Processing

The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation. 

After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.

9. To Keep Your legal Status in U.S. If Your I-140 Is Denied 

To keep the legal status in U.S. after the I-140 denial, it is extremely important that an H-1B holder maintains H-1B nonimmigrant status rather than sitting on EAD status. There are two reasons for this: 

1) the I-140 denial or I-485 denial does not disqualify the applicant to re-file the case, if you are in a valid nonimmigrant status. Those who stay and work on EAD lose a legal status, as soon as I-140 or I-485 is denied and becomes ineligible to file another petition. 

2) the denial of I-140 can be appealed, if you are in a valid nonimmigrant status. The H-1B holder is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit during the appealing process, until the final decision of the application.

10. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial

Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.

If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:

    * The requested evidence was not material;
    * The required initial evidence was submitted with the petition;
    * The request for appearance or additional evidence was complied with during the allotted period, or
    * The request for evidence or appearance was not sent to the address of record.

As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.

A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.”  Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.



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The Premium Processing Service of Form I-140 Petition
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William's Answers for I-140 Petition Questions
Do-It-Yourself Package for I-140 Immigrant Petition
The Form I-140 Immigrant Petition for Alien Worker
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