Frequently Asked Questions - Form I-140

  1. I-140 Withdrawal vs NOIR in AC21 Context
  2. Ability to Pay
  3. Qualifying Degrees for EB-2
  4. I-140 Successor-in-Interest
  5. Multiple I-140 Approvals and Linking to I-485
  6. I-140 Expedite requests
  7. I-140 Petition and Inability to Pay
  8. Premium Processing not available to multi-national executives and managers
  9. I-140 Evidence for Ability to Pay
  10. Green Card through Consular Processing with Approved I-140
  11. I-140 Petition Through Premium Processing
  12. Spouse of an O-1 - next step to Green Card
  13. Can I process I-140 with previous company
  14. Can approved I-140 be revoked?
  15. Switching Jobs after I-140 approval
  16. H-1 extension beyond 6 years
  17. Can I change jobs and file PERM and I-140 under EB-2
  18. Job Change after I-140
  19. Can my employer file a I-140 after I quit or he terminates me?
  20. Approval of I-140
  21. Out of Status
  22. Importance of having continuity of employment/pay stubs
  23. EB3 to EB2 and I-140 Refile
  24. Use of priority date
  25. H1 6th Yr - Labor Approved - NO I-140
  26. I-140 Denied
  27. Current USCIS procedures for PD transfer and AOS
  28. AC-21 Ability to pay
  29. I-140 application, experience certificate
  30. I-290B AAO Process case online status question
  31. I-140 may get revoked. What happens to priority date?
  32. Obtaining H-1 Extension beyond 6 years
  33. RFE after the I-140 was approved
  34. H-1 Extension based upon spouse's 140; Child born in USA
  35. USCIS Finally correct 140 Premium Policy
  36. Multiple I-140 filings
  37. GC future job; H-1 ext. revocation upon 140 denial, etc
  38. Employers and Employees -- H-1 or EAD?
  39. CIS Reinstates Limited I-140 Premium Processing
  40. If I-140 gets revoked/denied does my H-1 extension get canceled?
  41. Expected I-140 denial
  42. What to do if an I-140 gets rejected?
  43. Supervisory review
  44. Regarding H-1B Extensions
  45. What is new regulations for H-1 grace period, revocation of I-140 ?
  46. Changing Jobs After I-140 Approval
  47. Changing Back to F-1 Student Status After Filing for Green Card
  48. I-140 approved - H-1B renewal
  49. The Proposed I-140 EAD Rule - FAQ's
  50. Difference between I-140 withdrawn and revoked
  51. No loss of priority date if employer revokes I-140; Green card through future employer
  52. Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status
  53. Obtaining copies of approval notice and other documents through FOIA
  54. Writ of Mandamus against delay
  55. Priority date loss upon revocation of I-140
  56. For PERM is formal certificate required or completion of degree is enough
  57. Changing employers - what immigration documents should I keep
  58. H4 - EAD validation if H-1B holder moved to another company
  59. Priority date port and multiple I-485/AOS petitions
  60. I-485/AOS/AC21 issues in job through future employer - I-485/AOS
  61. Regarding Form G-884 (Returns of original documents)
  62. Refiling I-140 using old PERM (after 180 days)
  63. H-4 EAD filing based upon I-140
  64. Requirements for Extension of H-1 beyond 6 years
  65. Change jobs without having to file for I-140 again
  66. How to get a copy of I-140 approval
  67. Green card through two employers and future employer
  68. H-4 EAD Rule
  69. Procedure for Porting a Priority Date from One I-140 to Another
  70. Changing from EB-3 to EB-2 Category
  71. Changing Jobs During Green Card
  72. Using Obama's Immigration Action to Apply for AOS/EAD
  73. I-140 Revoked after AC21 Portability
  74. Concurrent AOS filing for EB-2 Physical Therapist
  75. Obama's Immigration Action EAD At I-140 Stage
  76. H-4 and I-140
  77. Discrepancies In Date Of Birth Information
  78. Do Not Have Copy of I-140 Approval Notice But Have Receipt
  79. I-140 for H-1B Extension
  80. Eligibility for I-140, Undocumented Dreamer
  81. I-140 Pending Approval
  82. Retaining PD
I-140 Withdrawal vs NOIR in AC21 Context

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

Ability to Pay

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

Qualifying Degrees for EB-2

In June 2007, the USCIS clarified what is considered to be equivalent to a U.S. Master’s Degree for Employment-Based Category 2. Each petition and its supporting documentation are examined on a case-by-case basis and degree equivalencies are based on the evidence presented with the individual case. However, the below is provided as a general outline:

1. U.S. Master’s Degree – As long as it is in the field required, no additional document is required.

I-140 Successor-in-Interest

If the I-140 petition is still pending, then USCIS needs to be notified in writing of the change. If the I-140 is already approved, then an amendment needs to be filed by the successor-in-interest petitioner. Note that the successor-in-interest petitioner must take over the rights and liabilities of the earlier petitioner, including the immigration matters.

Multiple I-140 Approvals and Linking to I-485

If an I-485 is already pending, a newly approved I-140 can be linked to it by sending a written request to the USCIS. Include all information and relevant copies to clearly explain the transfer of the I- 485 petition to a different I-140 approval.

I-140 Expedite requests
I-140 Petition and Inability to Pay

According to USCIS, a letter is acceptable from a financial officer validating 100 employees and ability to pay. However, further information can be requested in case there are other reasons that show an inability to pay. Please keep in mind the employer in the RFE should be given the reason for the request. It is also important to know that USCIS might take the letter from the financial officer due to discretion.

Premium Processing not available to multi-national executives and managers

USCIS has not yet finalized the system and has not announced when it will begin.

I-140 Evidence for Ability to Pay

The regulations state that for ability to pay wages, USCIS will accept copies of annual reports, federal tax returns, or audited financial statements. If the employer has more than 100 workers, a statement from a financial officer of the organization can be submitted to establish the ability to pay the proffered wage.

Green Card through Consular Processing with Approved I-140

Answer 1. As long as the job offer exists and the employer is capable of paying the wages, the green card process can go on, even though you are not in USA. You should discuss this matter in detail with your lawyers to better understand the implications. Also, I-140's do not expire.

Answer 2. PD can be ported even if the 140 is revoked by employer. I have a video on this issue 

I-140 Petition Through Premium Processing

Currently USCIS is accepting premium processing for certain I-140 categories. In addition to the regular filing fee, there is an additional $1,225.00 filing fee to upgrade to premium processing. If an I-140 is filed with premium processing, USCIS will issue a determination or an RFE within 15 calendar days.

Typically, these are some of the reasons when an I-140 should be filed through premium processing:
1) When an I-140 approval is needed to extend H-1 beyond the 6 years. Please see Rajiv’s blog entry for more information:

Spouse of an O-1 - next step to Green Card

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Can I process I-140 with previous company

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

Can approved I-140 be revoked?

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

Switching Jobs after I-140 approval

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

H-1 extension beyond 6 years

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

Can I change jobs and file PERM and I-140 under EB-2
Job Change after I-140

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Can my employer file a I-140 after I quit or he terminates me?

Both things are possible as long as the I-140 is filed in good faith. I have doubts about the I-140 approval if the job ceases to exist even temporarily.

Approval of I-140

CHANGING EMPLOYER WITHOUT I-140 APPLICATION
If a person changes employers without ever applying for I-140, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer.

WHAT IF I-140 IS DENIED
The PD cannot be transferred

CHANGING EMPLOYER AFTER I-140 APPROVAL

Out of Status

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Importance of having continuity of employment/pay stubs

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

EB3 to EB2 and I-140 Refile

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

Use of priority date

Your wife cannot transfer your priority date to her case.

H1 6th Yr - Labor Approved - NO I-140

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

I-140 Denied

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

Current USCIS procedures for PD transfer and AOS

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

AC-21 Ability to pay

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

I-140 application, experience certificate

In my view, these letters should be obtained BEFORE the PERM application is even started. It can be one of the required and key pieces of evidence in I-140. But the preparation to deal with this issue has to be made even before the PERM application is drafted.

I-290B AAO Process case online status question

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

I-140 may get revoked. What happens to priority date?

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

Obtaining H-1 Extension beyond 6 years

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and

RFE after the I-140 was approved

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

USCIS Finally correct 140 Premium Policy

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

 

Multiple I-140 filings

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

GC future job; H-1 ext. revocation upon 140 denial, etc

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Employers and Employees -- H-1 or EAD?

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

CIS Reinstates Limited I-140 Premium Processing

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

Expected I-140 denial

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

What to do if an I-140 gets rejected?

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Supervisory review

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

Regarding H-1B Extensions

You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

What is new regulations for H-1 grace period, revocation of I-140 ?

Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

Changing Jobs After I-140 Approval

Watch Video: Changing jobs after I-140 approval

Video Transcript:  Under the current laws, if you change jobs after I-140 approval you keep your priority date, but you lose your right to H-1 extensions beyond what is given if your old employer revokes/withdraws the I-140.

Now answering your questions

Changing Back to F-1 Student Status After Filing for Green Card
I-140 approved - H-1B renewal

Yes, as long as the I-140 is not revoked.

The Proposed I-140 EAD Rule - FAQ's

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Difference between I-140 withdrawn and revoked

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/Gl2WiBEALtk?t=273

FAQ Transcript:

No loss of priority date if employer revokes I-140; Green card through future employer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

https://youtu.be/H_VV9kV_lOg?t=688

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

Obtaining copies of approval notice and other documents through FOIA

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/H_VV9kV_lOg?t=1610

FAQ Transcript

Writ of Mandamus against delay

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/F0YZD8zWm88?t=333

FAQ Transcript:

Writ is simply order of the court or a formal order.

Priority date loss upon revocation of I-140

As far as we know, USCIS has once again revered its position and has stated that priority dates will be retained if the revocation is based upon an employer's request.  See: the blog entry here

For PERM is formal certificate required or completion of degree is enough

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/ZvUVIGTM-Kk?t=602

Changing employers - what immigration documents should I keep

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

H4 - EAD validation if H-1B holder moved to another company

USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.

Priority date port and multiple I-485/AOS petitions

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/OMuYdzLJ2qQ?t=1436

FAQ Transcript:

I-485/AOS/AC21 issues in job through future employer - I-485/AOS
Regarding Form G-884 (Returns of original documents)

Form G-884 is used to request return of documents YOU had sent to USCIS (e.g., your college degrees and diplomas). Use FOIA for the purpose you are considering.

Refiling I-140 using old PERM (after 180 days)

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.    

https://youtu.be/ZBJhcjjIrzs?t=1548

H-4 EAD filing based upon I-140

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/8N82R3qAiJo?t=569

FAQ Transcript:

Requirements for Extension of H-1 beyond 6 years

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

 https://youtu.be/3Heaadpk1Ik?t=273

FAQ Transcript:

Change jobs without having to file for I-140 again

When:
1. I-140 is approved; and
2. The I-485 has been pending 180 days; and
3. The job described in green card is the same or is similar to the job you are going to;

How to get a copy of I-140 approval

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=baprYGs8IzQ&t=1376 

FAQ Transcript

Green card through two employers and future employer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=baprYGs8IzQ&t=893 

 

FAQ Transcript

H-4 EAD Rule

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

Procedure for Porting a Priority Date from One I-140 to Another

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=657

FAQ Transcript

Changing from EB-3 to EB-2 Category

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

Changing Jobs During Green Card

 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


FAQ Transcript

Using Obama's Immigration Action to Apply for AOS/EAD

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

I-140 Revoked after AC21 Portability
Concurrent AOS filing for EB-2 Physical Therapist

Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.

Obama's Immigration Action EAD At I-140 Stage

I have heard that there is a proposal to allow filing of I-485 

H-4 and I-140

Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

Discrepancies In Date Of Birth Information
Do Not Have Copy of I-140 Approval Notice But Have Receipt

As long as your I-140 is not revoked BEFORE approval of H-1 extension/transfer, the receipt should be enough to get an extension with another employer. The priority date transfer is "automatic" and done at the USCIS level; that should not even need a receipt.

I-140 for H-1B Extension

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers.

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers. - See more at: http://www.immigration.com/comment/13726#comment-13726
Eligibility for I-140, Undocumented Dreamer

Unfortunately, there is nothing in the current law that will help you get your green card on your own.

I-140 Pending Approval

The priority date is yours the mo

Retaining PD

Employees retain PD even if the o