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Frequently Asked Questions and 
Answers About Form I-140 Green Card Application

                                                I-140 Petition Questions and Answers graphic

Q: For I-140 petition, what is the employer's ability to pay the proffered wage?

A: For immigration categories that require the Labor Certification application, once the employer has obtained the Labor Certification, the employer can file an I-140 immigrant petition for an alien with the USCIS.

One purpose of I-140 petition that requires a certified Labor Certification is to establish that the employer has the ability to pay the offered wage stated in the Labor Certification application. The employer must be able to prove its ability to pay the proffered wage at the time the priority date is established, and continuing until the beneficiary employee obtains the lawful permanent residence.

Q: How to establish the ability to pay the offered wage?

A: AN employer must establish that it had the ability to provide the salary stated on the certified Labor Certification and the I-140 immigrant petition, since the filing date of the Labor Certification application. Establishing how to prove that an employer has the ability to pay has continued to raise concerns, and the USCIS had issued a guidance to its Service Centers to clarify what types of documents are acceptable, and the basic review procedures. The ability to pay can be established by: 

1) the employer actually paid the employee salary equal to or greater than the offered wage, or 

2) the employer net income was equal to or greater than the offered wage, or 

3) the employer net current assets were equal to or greater than the offered wage.

Q: What is the required evidence to prove the ability to pay the offered wage?

A: A petition filed for an employment-based immigrant, which requires an offer of employment, should be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. A petitioner should file a completed Form 1-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage. The required initial evidence should include copies of employment of the beneficiary, net income, net current assets.

The petitioner should submit a copy of at least one of these required documents. Based on one of the three of the above mentioned documents, the USCIS needs to make a positive ability to pay determination. USCIS adjudicators are not required to accept, request, or issue an Request For Evidence (RFE) for a financial statement from U.S. employers who employ 100 or more workers to establish ability to pay. 

Q: What If the required initial evidence submitted does not establish the ability to pay of employer?

A: If the required initial evidence is submitted, and it does not establish the ability to pay, USCIS adjudicators may deny the I-140 petition. If the case is denied, the petitioner may file an appeal or a motion to reopen the case. If the USCIS adjudicator exercises discretion to accept either the financial statement or additional financial evidence, that evidence must clearly establish the ability to pay of petitioner. 

If the USCIS adjudicator has any doubts about whether the additional documents establish the ability to pay, the adjudicator may deny the petition and not request for additional evidence to further clarify the discretionary evidence.

Q: Can I use my W-2s and payroll documents to establish the ability to pay of employer?

A: The common documents for an employer to establish the ability to pay include Form 941 Employer Quarterly Federal Tax Return, W-2s and Tax Statements, Payroll Documents, Taxable Income that exceeds the proffered wage in the year of filing and in all subsequent years are the best evidence of ability to pay the proffered wage, but small businesses may withdraw profits as “compensation to officers” to avoid double taxation. 

Taxable income, together with a portion of compensation to the officers of a small company could exceed the proffered wage, whereby the net effect is that upon employment of another employee, a reduction of the overall compensation to officers would occur, and the company will be able to compensate the employee with the proffered wage.

Q: Can I use bank statements and lines of credit to establish the ability to pay?

A: Bank Statements and Lines of Credit must show that the line of credit was in effect as of the date of filing and documentation. Absent corroborative documentary evidence, such as audited or reviewed financial statements, or federal tax returns, a statement from an accountant is not considered to be substantive evidence of an organizational ability to pay the proffered wage.

Annual Reports, Profit Loss Statement, Audited Financial Statements can impact upon the ability to pay proffered wages. If the current assets exceed the current liabilities with sufficient funds to compensate the beneficiary employee upon review of an organizational current assets to current liabilities on the balance sheet, then the organizations ability to pay the proffered wage is generally considered to be established. 

Q: What is the requirement of bachelor degree or equivalent in the I-140 petition?

A: The requirement of bachelor degree or equivalent in the I-140 petition can be established only by academic education and degree. Here, the language equivalent in the I-140 petition is taken by the USCIS as an equivalent foreign degree, and not combination of education and experience. 

Additionally, in the EB-2 based I-140 petition, even if the Labor Certification application stated that the employer would accept a combination of education and experience in lieu of the bachelor degree, for the purpose of establishing the requirement of a bachelor degree followed by five years of progressive requirement, the USCIS may not accept such proof to meet the threshold qualification requirement for the EB-2 I-140 petition. 

Q: Can my working experience be counted to prove a degree requirement in the I-140 petition?

A: People are often confused between the H-1B professional degree or equivalent requirement and the degree or equivalent requirement in the I-140 petition. In the H-1B petitions, a four-year college degree can be satisfied by an evaluation of combination of education and experience or entirely on experience.

But in the I-140 petition, unless the Labor Certification specifically states that the employer will accept such combination, experience cannot be counted to prove a degree requirement in the I-140 petition.

Q: What is the major advantage of filing I-140 petition in EB-2 immigrant category?

A: The major advantage of filing I-140 petition in EB-2 immigrant category is 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.  

Q: What do I need to know for Labor Certification based EB-2 I-140 application?

A: 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 applicants must bear in mind before one considers this option. In the EB-2 Labor Certification application, it is extremely important that the education and experience requirements are carefully drafted in the Labor Certification application. Otherwise, people would experience a nightmare or denial of EB-2 petition at the stage of USCIS I-140 petition proceedings, after wasting the time to obtain a labor certification application. 

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 applicant proves that he or she has a master degree from a U.S. institution or equivalent degree from a foreign academic institution, he or she will not be able to file EB-2 based I-140 petition. 

Q: What is the single bachelor degree requirement for EB-2 based I-140 immigrant petition?

A: 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 or she attained a single bachelor degree either from a U.S. academic institution or a foreign academic institution. According to an USCIS decision, combination of two or more academic degrees cannot satisfy a bachelor degree or equivalent degree requirement.

Q: My PERM Labor Certification has been approved. What is the process for U.S. Permanent Residency (Green Card) application?

A: For an alien applicant to seek U.S. permanent residency based on approved Labor Certification, the following is the process:

1) After the Labor Certification (or PERM Labor Certification) approval from U.S. Department of Labor , The alien's employer should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS.

2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, when an immigrant visa number is available for the alien beneficiary.

3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail.

Q: My Labor Certification has been approved, and I want to file Form I-140 application. How could I get help from you service?

A: The burden of Form I-140 petition approval rests with the petitioner. The petitioner should provide substantial evidence to meet the regulation requirements of the immigrant visa. If the alien beneficiary is qualified, then the success depends largely on the way the petition is presented to USCIS. 

To help you obtain U.S. Green Card easily and quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for Form I-140 Immigrant Petition, based on our extensive and practical immigration experience.

Q: What are the added values in the Complete Do-It-Yourself Package for Form I-140 Immigrant Petition?

A: As added value in the Complete Do-It-Yourself Package for Form I-140 Immigrant Petition, we provide comprehensive instructions on U.S. immigration application requirements and processing, and we also provide you the methods of how to prepare the I-140 petition, how to collect evidence, and how to write the petition cover letter and the reference letters. 

We also provide step-by-step procedures for the I-140 petition, various petition strategies, in-depth explanation of From I-140 petition related issues, detailed sample cover letter, detailed sample reference letters, samples of filled forms, complete petition check list, petition required forms, in-depth case studies, and more.

Q: My employer filed Form I-140 for me 3 months ago. But now we received a Request For Evidence notice, do you know why?

A: Simply presenting evidence which relates to the Form I-140 petition requirements does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. 

If the USCIS adjudicator determines that the evidence does not meet the standard for the Form I-140 petition, the additional evidence may be requested from the petitioner, or it is called 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.

Q: For EB-2 based I-140 immigrant petition, what is the 5-year progressive experience requirement for people without master degree?

A: Assuming that an alien is able to establish that he or she attained a 4-year bachelor degree, the next threshold is to prove the 5-year progressive experience. The USCIS requires that the experience must have been gained after attaining a bachelor degree. Accordingly, any experience which was gained prior to attaining a bachelor degree cannot satisfy the 5 year progressive experience requirement. 

Q: For EB-3 based I-140 application, can I use equivalent degree to meet the bachelor degree requirement?

A: The requirement for academic degree and experience requirement tends to be inconsistent in reality and in the USCIS practice between EB-2 and EB-3. Unlike the EB-2 petition, in the EB-3 requirement, it has been the USCIS position that when a bachelor degree or equivalent degree is required in the Labor Certification, the degree requirement can be established by a combination of one or more academic degrees. 

Q: For I-140 petition, is there any requirement for the experience listed in the Labor Certification?

A: In the EB-2 based I-140 petition, the regulation uses a specific language of a bachelor degree followed by the five years of progressive experience. 

For instance, if the Labor Certification application required a bachelor degree or a master degree, any experience during the degree program has been fairly liberally accepted by the USCIS. However, when an alternative requirement in lieu of a bachelor degree or a master degree is required in the Labor Certification application, the USCIS has interpreted the law more narrowly.

Q: What is the post-graduate experiences in the EB-2 based I-140 petition?

A: When it comes to the requirement of experience, it also has been USCIS position that the experience during the period of degree program can be counted to satisfy the experience requirement in the Labor Certification application if the degree requirement is satisfied. 

This is drastically contrasted to the experience requirement in the EB-2 based I-140 petition requiring a bachelor degree plus 5 years of progressive experience that only counts post-graduate experiences. In the EB-2 based I-140 petition cases, the definition of degree and experience requirement is more strict, restrictive, and narrow, because of the specific languages in the EB-2 regulation, as opposed to the definition of degree and experience requirement for the EB-3 regulation.

Q: I applied I-140 before with my previous employer, can I keep my priority date after job change?

A: Many people confuses the rule of priority date transfer in the immigration proceedings. The priority date of employment-based immigrant petition is retained only after the I-140 petition is approved, and the alien beneficiary of multiple approved I-140 petitions through the same employer or different employers can claim the earliest priority date in the I-485 application proceedings.

The retained priority date is limited to the individual alien beneficiary only, and cannot be transferred to other individuals including the spouse, even if the spouse has another approved I-140 petition. 

Q: My employer applied I-140 for me, can I transfer my priority date based on I-130 petition filed by my parents several years ago?

A: The retained priority date is available for such transfer only between or among the multiple employment-based I-140 petitions for the same alien. The employment-based priority date cannot be transferred to or from a family-based immigrant petition of I-130 petition of the same alien, or other non-employment based immigrant proceeding such as diversity immigrant proceeding or refugee proceeding. 

Q: My I-140 application is pending,  what are the consequences for my Green Card application process during an immigrant visa number retrogression?

A: When the immigration visa number is unavailable for an alien, either because of the total unavailability of the visa numbers for everyone in certain category, or when the visa number is generally available because of the cutoff date and priority date is far from the cutoff date, there are consequences taking place depending on at what stage he or she is in for the Green Card process. 

For those who are still at the stage of Labor Certification or I-140 application, it means that even if an alien employee can get the Labor Certification or I-140 approval, the alien employee will not be able to file an I-485 application during such period, and consequently no EAD or Advance Parole will be available as well. 

Q: My I-483 application is pending,  what are the consequences for me during an immigrant visa number retrogression?

A: For those who have already submitted I-485 applications, it means that the USCIS will not be able to conclude his or her application during the period of visa unavailability, and the USCIS will just store the application and wait for the visa number availability for him or her, until it becomes available.

Q: With one certified EB-2 Labor Certification application, can I file both EB-3 and EB-2 base I-140 petitions at the same time?

A: People should keep in mind a few rules in the immigration laws that can help them to survive during the long journey to the Green Card target. When the visa number retrogressed steep with unpredictability of the patterns of each category of employment-based immigrant petitions, the employers can file both I-140 EB-2 and EB-3 petitions using one certified EB-2 Labor Certification, and depending on the specific progression for EB-2 or EB-3 visa numbers to file the I-485 application.

Q: Why an employer can file both EB-3 and EB-2 base I-140 petitions, with one certified EB-2 Labor Certification application?

A: Under the immigration rule, an employer can file EB-2 I-140 petition and EB-3 I-140 petition either simultaneously and separately using the same certified EB-2 Labor Certification application. 

Since the EB-3 petition threshold requirement is minimum of a bachelor degree, the holder of an advanced degree is automatically qualified for EB-3 I-140 petition once the EB-2 Labor Certification has been certified by the Department of Labor. 

Q: My previous employer applied I-140 in EB-3 for me, can I transfer my priority date to my I-140 application in EB-2 filed by my current employer?

A: Under the immigration rule, the priority date of one class of employment-based petition is transferable to another class of employment-based petition. Priority date is retained if the approved I-140, and it is not either revoked or withdrawn by the employer. 

For instance, assume that EB-2 Labor Certification and EB-2 based I-140 petition were approved through the Employer A, but the alien changed the employment to Employer B. Through Employer B, another Labor Certification of EB-3 was approved afterwards. The employer B will be able to file I-140 petition for EB-3 with the priority date established by the Employer A. The same is true with the Labor Certification waived EB-2 NIW petition and EB-3. Accordingly, if one has to change employment, one should make sure that the old employer does not withdraw the I-140 petition, so as to borrow the earlier priority date.

Q: After my I-140 approval, in what situation I can change job?

A: The immigrant visa portability AC-21 Act allows the employee of an approved I-140 application, who has filed an I-485 Adjustment of Status Application and has waited more than 180 days, to transfer the approved I-140 application to a new employer. AC-21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC-21 portability are available to any qualified individual, even if there is not an available visa number for his or her case. 

As long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC-21. Given that some I-485 applicants may be retrogressed for several years, particularly those in the EB-3 classification with recent priority dates, this ability to change jobs may be very useful in allowing individuals to progress in their careers, or to find new employment in the event of a layoff. As with any major decision, it is important to be aware of the potential risks involved before changing jobs. 

Q: My company is in the process of acquisition, will this affect my approved Labor Certification?

A: This is the era of frequent corporate merger or acquisition. Depending on the type of merger or acquisition, the alien with pending or approved Labor Certification and/or I-140 can be affected. However, once the Labor Certification is approved, the DOL has no authority to amend the certified labor certification application, and it is up to the USCIS to permit the transfer of the approved Labor Certification to the acquiring or merging employer. 

Q: My company will be merged in to another company soon, will this affect my approved I-140 application and pending I-485 application?

A: For those who reached the stage of 180-day after filing of I-485 with the approved I-140 petition, corporate merger or acquisition does not affect them at all, regardless of the specific type and nature of merger or acquisition, as they can use AC-21 portability to work for new employer. 

However, those who have yet to reach such stage (180-day after filing of I-485 with the approved I-140 petition), the nature and type of merger or acquisition will have a critical consequence, unless it satisfies the successor-in-interest merger or acquisition.

Q: If I change job after I-140 and I-485 application, does it have to be in the same field?

A: If the I-140 petition has been approved and the I-485 application has been pending for more than 180 days, then the employee can port the certified Labor Certification application and approved I-140 to a new employer, as long as the new job is in the same or similar occupational classification. 

Q: If I change job after I-140 approval and I-485 application, what will happen if my previous employer revokes my I-140 application?

A: Even if the I-140 is revoked by the previous employer, the portability is still allowed, as long as the I-140 was approved and the I-485 has been pending for more than 180 days. 

One reason of the AC-21 Act is to allow the employee who suffer from delays to commence employment at a new employer, without being kept to the first employer during lengthy processing. There is no requirement in general that the beneficiary employee be working for the petitioner throughout the Green Card process.

Q: If I change job using the AC-21 rule, do I need to ask my new employer to submit another I-140 application?

A: There is no need for the new employer to submit an I-140 application, but a letter of intended employment is required to send to USCIS. The letter should detail that the position is in the same or similar occupational classification, accompanied by a copy of the I-140 approval notice and I-485 Filing Receipt, indicating 180 days or more have passed since the filing. 

Q: Before changing job using the AC-21 rule, what should else I need to know? 

A: Assuming that the I-140 has been approved, and I-485 has been pending for more than 180 days, then the applicant can port the certified Labor Certification Application and approved I-140 to a new petitioner, as long as the new job is in the same or similar occupational classification. There is no need for the new employer to submit an I-140 application. 

But to be safe, you should examine the duties, requirements, and salary of the position as stated in the certified Labor Certification Application form.

Q: With an approved Labor Certification application, can I change job before the I-140 approval?

A: With approved Labor Certification application, if you change job before the I-140 approval, your employer may withdraw the I-140 application. If the employer withdraws the I-140 before it has been approved, the USCIS will NOT provide the employee an opportunity to change employer with certified Labor Certification application.

Q: With my I-140 approval and I-485 application pending, can I change jobs multiple times using AC-21?

A: An alien applicant whose I-485 adjudication may be delayed by several years as the result of retrogression could be in the situation of having to change jobs not just once, but multiple times. 

The question of whether one may take advantage of AC-21 portability more than once and still obtain the Green Card approval is neither addressed in the AC-21 Act, nor in any USCIS policy guidance. It would appear that, provided the basic requirements for AC-21 portability are met, one would be eligible to change jobs or employers multiple times pursuant to AC-21. 

Q: With I-140 approval and I-485 application pending, do I have to get a permanent position for the job change?

A: AC-21 requires that the applicant have a permanent (non-temporary) job offer as the underlying basis for the Green Card approval. If one has a history of bouncing from job to job, this could raise questions as to employment stability and whether the individual has a qualifying, permanent job offer. 

Therefore, when there is a choice with regard to changing jobs, employment stability and the potential for longevity with the new employer are valid concerns.

Q: Before an I-140 denial, will I get the Request for Evidence (RFE) first?

A: The USCIS has issued a Memorandum reminding USCIS Regional Directors, Service Center Directors, District Directors, and Officers-in-Charge that immigration regulations do not require a Request for Evidence (RFE) in every instance before issuing a denial. 

The Memo further describes situations in which the USCIS does not believe an RFE will be required. Although the intent of the Memo may be to expedite processing of cases, this may result in denials, without affording the employer or applicant an opportunity to respond to an RFE. 

Q: What are the general reasons used for USCIS to deny an I-140 application?

A: The USCIS appears to dig into the I-140 supporting documentation and develop issues of I-140 denial from these evidence, such as income tax returns, W-2 copies, etc., which can be used to challenge the financial ability to pay, or existence of real permanent job or real business, or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. 

Q: For I-140 application, what is the clear evidence of the ineligibility of an applicant?

A: Immigration regulations provide that an I-140 case may be denied when there is clear evidence of ineligibility. These situations include I-140 petitions filed on behalf of someone who does not have the required degree or equivalence. An I-140 petition with evidence of clear ineligibility will result in denial. 

It is critical for petitioners, beneficiaries, and applicants to submit the required evidence proving eligibility for the immigration benefits sought at the time of filing. Otherwise, an application may be denied outright, without an RFE. If a person is not eligible for the immigration benefit sought, then it would make sense that the petition or application should be denied.

Q: Are USCIS adjudicators required to issue an RFE, if there are some problems in my I-140 application?

A: USCIS indicated that while there can be a number of documents the petitioner may choose to submit to show its financial ability to pay an employee salary, the USCIS adjudicator is not required to issue an RFE, as long as the petitioner sent at least one of the required documents. If the adjudicator does not believe that the particular document establishes the ability of the sponsoring employer to pay the I-140 employee or beneficiary the prevailing wage, then the adjudicator may deny the case, without an RFE requesting additional evidence from the employer of its ability to pay.

Q: As an employee, do you agree that it is not easy for us to obtain employer financial documents for my I-140 application?

A: In many cases, due to the burdens of obtaining each financial record and concern for the privacy of such information, employers or petitioners are reluctant to provide every financial document that could prove the ability to pay the required prevailing wage upfront. 

Petitioners and alien applicants will need to rethink this position to avoid I-140 application denials, due to insufficient documentation as viewed subjectively by a particular USCIS examiner or adjudicator.

Q: What is the Request for Evidence? and why we receive it from USCIS for my Form I-140 application?

A. The 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.

Q: What is the Notice of Intent to Deny? and why we receive it from USCIS for my Form I-140 application?

A. The 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.

Q: My Form I-140 application was denied by USCIS. Can I file Form I-140 application again later?

A: 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.

Q: What I need to do if my I-140 application is denied?

A: In many instances, if a case is denied, the petitioner may file a Motion to Reopen or Motion to Reconsider. Most motions must be filed within 30 days of the denial and require an additional filing fee. If the Motion is denied and the petitioner or applicant decides to file an appeal with the Administrative Appeals Office (AAO), then the AAO may take another year or longer to finally adjudicate the case. 

The fastest and easiest solution for many petitioners and alien applicants would be to re-file the application, with a new filing fee, and submit all documents up front to avoid the denial. 

Q: if my I-140 application is denied? do I get any specific reason?

A: A denial is required to be written in a manner that clearly and specifically explains the reasons for the denial. It is disappointing that some USCIS examiners may deny cases in which the documents submitted are insufficient to clearly result in an approval, instead of simply issuing an RFE. 

Q: Does the denial of I-140 petition invalidate the underlying certified Labor Certification?

A: Denial of I-140 petition does not invalidate the underlying certified Labor Certification application, unless it is invalidated for fraud or revocation. Accordingly, the petitioner can re-file the I-140 petition. 

Q: After the denial of I-140 petition, can I appeal it to AAO and refile the I-140 again at the same time?

A: A single certified Labor Certification application cannot support two I-140 petitions, particularly when the petition is denied and appealed to AAO. 

For this reason, the USCIS requires that the petitioner first withdraws the appeal which is pending at the AAO, in order to re-file I-140 petition. Otherwise, re-filing of I-140 petition will be denied. Once it is withdrawn, the USCIS Service Center will accept the withdrawal letter, and send it to AAO as evidence of withdrawal.

Q: After the denial of my I-140 application, can I apply for 7th-year H-1B extension?

A: For H-1B 7th-year extension, such extension will be available until there is a final decision of the I-140 petition. The denial of an application is not final, if the decision of the denial is appealed and pending. 

Accordingly, those who need extensions beyond H-1B six-year limit and whose application is pending more than 365 days before reaching H-1B six-year limit should file appeal of the denial of the I-140 applications. If their Labor Certification was approved but I-140 is denied, such USCIS denial decision may also be appealed to the AAO.

Q: My Form I-140 application has been approved by USCIS, can you help me for my From I-485 application?

A: The 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.

Q: My Form I-140 application has been approved by USCIS, when can I file Form I-485 to get my Green Card?

A: After your Form I-140 approval by USCIS, you can file Form I-485 to get your Green Card only after your priority date is "current."

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.

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.

Q: What is the "visa bulletin"? and how to check the availability of immigrant visa numbers?

A: The Visa Bulletin of U.S. Department of State summarizes the availability of immigrant visa 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

Q: My Form I-140 application has been approved by USCIS, how to apply for "Consular Processing" to get my Green Card if I am not in United States?

A: 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.

Q: What is the better way for me to keep my legal status in U.S. if my I-140 is denied after my replying of the RFE? 

A: 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.

Q: I am in H-1B status and work for a online education company. My employer will soon start the Green Card application process for me. I understand that we need to go though the PERM Labor Certification application first. But what is Green Card application process after the Labor Certification approval.

A: For a U.S. employer to seek U.S. permanent residency for an alien employee, the following is the process:

1) The employer should file Form I-140 application, Petition for Alien Worker, and also submit the job offer and other evidence to USCIS.

2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, if an immigrant visa number is available, and the alien beneficiary is in U.S. On the other hand, if the alien beneficiary is outside the United States when an immigrant visa number becomes available, the alien could complete the process of status adjustment at a nearest U.S. consulate office.

3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)

Q: What is the A# or A Number? We just send out the Form I-140 package to USCIS Service Center for my Green Card application. When we can get our A#, and what it is used for? Is it same as SSN? and do I need it for my employment authorization?

A: An alien applicant should have a A# 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.

Q: How to Effectively Organize the Evidence Accompanied with Form I-140 Petition

A: 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. 

Q: I filed Form I-140 and Form I-485 concurrently in the EB2 category based on PERM Labor Certification approval. Since the Form I-485 application has been pending for more than 180 days, can I use AC-21 rule to change employer at this time before the Form I-140 approval?

A: The change of employer when the Form I-140 petition has not yet been approved by USCIS is risky. One of the key problems is the possibility of a Request For Evidence (RFE) on the Form I-140 petition which may be issued by USCIS. 

When the Form I-140 is reviewed, the USCIS can issue an Request For Evidence (RFE). Since the Form I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the alien beneficiary, such as education and experience, it will be sent to the employer. If the employer does not respond, or responds stating the alien beneficiary is no longer employed by the petitioner, the Form I-140 petition will likely be denied.

Q: My employer has started the PERM Labor Certification application for me. After the PERM application approval, how long the I-140 petition process will likely take?

A: After the U.S. Department of Labor (DOL) approves the PERM Labor Certification application, the U.S. employer can file an Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-140 petition should includes the original approved PERM application in which the U.S. employer and the alien beneficiary worker must sign it. 

The Form I-140 petition should also include the evidence of the U.S. employer’s ability to pay the alien worker’s salary, and documents confirming that the alien beneficiary is qualified for the position, such as a copy of the alien worker’s educational degrees. The approved PERM Labor Certification application is only valid for a certain period of time, therefore the Form I-140 petition must be filed within this validity period. Otherwise the PERM Labor Certification application will expire, and the employer must start over again.

Generally, USCIS may take at least four months for I-140 decisions, and it can take USCIS much longer to adjudicate the Form I-140 petitions. Also, there is an expediting option available, Form I-140 Premium Service, for Form I-140 petition. The employer can pay an extra $1000 fee and request premium processing within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action which would be an approval. Alternatively, an USCIS officer could issue a Request for Further Evidence (RFE), or a Notice of Intent to Deny (NOID). For the case of RFE, USCIS will make a decision within 15 days of receipt of the response.

Q: My Form I-140 immigrant visa application was denied after the Request For Evidence (RFE) response to USCIS. What should I do next? Can I file a appeal of a Motion to Reopen? or file a Motion to Reconsider?

A: A 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.

Q: Can I File a U.S. Green Card Application for Myself?

A: We know most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.

The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.

Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.


Q: I completed my Bachelor degree in less than 4 years in my country. Now, USCIS sent me a Request For Evidence letter for my Form I-140 application, said my education "not equivalent to U.S. Bachelor’s degree".  How could I rely the RFE notice?

A: The Bachelor degree is typically a four-year program in many countries. If the alien applicant earned the degree in lesss than 4 years, or in only 3 years, the evidence should
explain carefully enough how the alien applicant came to earn this degree in less than 4 years, including the foreign credential evaluation given to the USCIS and the RFE response.

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.

Q: My employer will file labor certification for me soon, and will also sponsor my Green Card application later. How to draft the labor certification carefully to avoid problems at the Form I-140 application step?

A: The chances of the Form I-140 application success for an immigrant visa are mainly determined at the Labor Certification step. Therefore, the labor certification needs to be drafted carefully to avoid problems at the Form I-140 application step, such as the employer's "ability to pay" issue. An alien beneficiary may get Form I-140 application success if the employer is sponsoring the Green Card application from the time the labor certification is filed.

Ability to pay means a company’s ability to pay the wage listed on the labor certification to the foreign worker. Many green card applicants are under the mistaken impression that the ability to pay calculation begins only at the time of filing the Form I-140 petition. But actually, a company must demonstrate ability to pay from the time of filing the labor certification until the alien beneficiary has adjusted his or her status and become a U.S. permanent resident.

The easiest and most preferred method to demonstrate that a company has the ability to pay, and obtain an Form I-140 approval, is for the alien beneficiary to work for the company, and be paid the wage listed on the labor application from the time of the labor certification filing.

USCIS accepts only 2 forms of evidence to show the ability to pay: 1) an audited financial statement, which are time intensive and costly to prepare, especially for smaller companies, or 2) the company’s tax returns.  Either way, the net income of the company must be greater than the wage payment.

Sometimes, USCIS may send a Request For Evidence (RFE)  letter sending to the Form I-140 petitioner to ask for evidence of “ability to pay all”. This means the company must demonstrate its ability to pay not just the alien beneficiary, but also the wages of all other employees they have filed I-140 petitions for. For some companies, reporting a high net income on the tax return is not usually in their best interest. This can lead to th Form I-140 being denied if the company does not report a net income high enough to cover the total of all pay gaps for all Form I-140s ever filed.

Q: We recently received an Request For Evidene from USCIS for our Form I-140 petition, asking for employer's evidence of "ability to pay". Does this mean that our Form I-140 may be denied?

A: The employer's "ability to pay" is a requirement for the employer filing an Form I-140 immigrant petition. The petition should  demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an Form I-140 petition, the USCIS requires proof of the company's ability to pay the offered wage, starting with the labor certification filing date.

USCIS will deny the Form I-140 petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the I-140 approval if there is new evidence.

The following issues may indicate the employer's failure to establish the ability to pay the offered wages:

1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.

Q: Can I Upgrade My Green Card Application Case from EB3 to EB2 Category?

A: There are some alien applicants who are interested in the possibility of what is referred to as "upgrading" their Green Card application EB3 cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category.

The observation of the monthly U.S. Department of State's visa bulletin reveals a major difference between the EB2 and EB3 immigrant categories, for some countries like India, Mexico, Philippines, and China. For example, in recent years, EB2 India has fluctuated between 2004 and 2010, EB3 India has slowly advanced for the same period, from 2002 to 2003. Thus, the EB2 India's visa movement is faster than EB3.

For many EB3 visa applicants, the immigrant visa waiting time is unavoidable. However, some employment-based immigrant visa applicants may qualify to change to EB2 visa category because of the following reasons:

    * having obtained advanced degrees,
    * having additional job experience,
    * having new job offers that satisfy the requirements for EB2 filings;
    * an increase in the complexity and sophistication of one's job duties and a commensurate increase in salary.

The change to EB2 immigrant visa category does not actually "upgrade" the previously filed Labor Certification (LC) and Form I-140 petition. This EB3 to EB2 "upgrade" process requires the filing of a new Labor Certification and related Form I-140 petition, requesting EB2 classification.

Using the EB2 category, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence with form I-485, the strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved Form I-140 petition.




 


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