What Employment Categories Use Form I-140?
Form I-140 covers all employment-based preference categories requiring USCIS petition approval.
EB-1 First Preference: Extraordinary ability workers (EB-1A), outstanding professors and researchers (EB-1B), and multinational executives and managers (EB-1C).
EB-2 Second Preference: Workers with advanced degrees or exceptional ability, including National Interest Waiver (NIW) self-petitioners.
EB-3 Third Preference: Skilled workers requiring two years of training, professionals with bachelor's degrees, and other workers in unskilled positions.
Which Categories Require PERM?
EB-2 (except NIW) and EB-3 categories require approved PERM labor certification before filing I-140. PERM proves no qualified U.S. workers are available for the position.
EB-1 categories and EB-2 NIW do not require PERM. These categories are based on the individual's qualifications rather than labor market testing.
For PERM-based cases, the priority date is the PERM filing date. For non-PERM cases, the priority date is the I-140 filing date.
How Do You File Form I-140?
The petitioner (employer or self-petitioner) files Form I-140 with USCIS along with supporting evidence demonstrating category eligibility.
For PERM-based petitions: Include the approved PERM labor certification, evidence the beneficiary meets job requirements, and evidence of employer's ability to pay the offered wage.
For EB-1 petitions: Include extensive evidence of extraordinary ability, outstanding achievement, or multinational executive qualifications as applicable.
For EB-2 NIW petitions: Include evidence of advanced degree or exceptional ability plus documentation establishing the national interest waiver criteria.
What Is Required for Ability to Pay?
Employers must demonstrate ability to pay the offered wage from the priority date until the beneficiary obtains permanent residence.
Evidence includes: annual reports, federal tax returns, audited financial statements, or proof the beneficiary is already employed at the offered wage.
For small employers, USCIS examines net income and net current assets. The offered wage must be payable without jeopardizing business operations.
What Is I-140 Premium Processing?
Premium processing provides guaranteed 15 business day adjudication for an additional $2,805 fee. USCIS issues an approval, denial, RFE, or NOID within this timeframe.
File Form I-907 Request for Premium Processing Service concurrently with I-140 or after I-140 is already pending.
If USCIS fails to meet the 15 business day deadline, they refund the premium processing fee but continue processing the case.
When Should You Use Premium Processing?
Premium processing is valuable when: visa bulletin dates are current or nearly current, you need quick approval for H-1B extension beyond six years, time-sensitive job changes are planned, or employer needs certainty for business planning.
Premium processing is less critical when: priority dates are years from becoming current, no time-sensitive deadlines exist, or budget constraints make the additional fee burdensome.
RFE issuance within premium processing restarts the 15 business day clock after you respond.
What Happens After I-140 Approval?
I-140 approval establishes your classification and locks in your priority date. The approval notice shows your category and priority date.
If your priority date is current (earlier than visa bulletin cutoff dates), you can immediately file I-485 adjustment of status or begin consular processing.
If your priority date is not current, you wait until the visa bulletin shows your date is current. This waiting period can range from months to decades depending on category and country of birth.
How Long Is I-140 Approval Valid?
Approved I-140 petitions do not expire. The approval remains valid indefinitely for priority date purposes.
However, I-140s can be revoked: by USCIS for fraud, misrepresentation, or error; or by the employer through withdrawal.
I-140s approved for 180 days or more remain valid for priority date retention even if the employer withdraws, unless revoked for fraud or material error.
What Is I-140 Portability Under AC21?
AC21 Section 106(c) provides portability for approved I-140 petitions, allowing beneficiaries to change employers while retaining their priority date.
For portability to apply: the I-140 must be approved, the I-140 must have been approved for at least 180 days (or I-485 pending for 180 days), and any new job must be in the same or similar occupational classification.
Portability allows job mobility during the often lengthy wait for priority dates to become current.
Can Your Employer Revoke Your I-140?
Yes. Employers can withdraw I-140 petitions at any time. This commonly occurs when employees resign or are terminated.
If withdrawal occurs before 180 days of approval, the petition is fully revoked and the priority date is lost.
If withdrawal occurs after 180 days of approval, the priority date is retained and can be used with a new employer's petition (requires new PERM and I-140 but uses old priority date).
What Is Priority Date Retention and Porting?
Priority date retention allows you to keep your original priority date even when filing a new I-140 with a different employer.
Requirements: the original I-140 was approved and not revoked for fraud or material error. The priority date transfers to subsequent I-140s.
You can port priority dates across different employers and even different categories. An EB-3 priority date can be used for a later EB-2 case if you qualify.
How Do You Claim a Previous Priority Date?
When filing a new I-140, indicate you are requesting priority date retention and provide the previous I-140 receipt number and approval information.
Include evidence of the prior approval: copy of I-140 approval notice, USCIS records showing approval, or other documentation.
USCIS verifies the prior approval remains valid and applies the earlier priority date to your new petition if eligible.
Common I-140 Issues and Solutions
RFE for ability to pay: Provide additional financial documentation such as updated tax returns, bank statements, or evidence of wages already being paid.
RFE for beneficiary qualifications: Submit additional degrees, experience letters, credential evaluations, or expert opinion letters.
Denial for insufficient evidence: Consider filing a motion to reopen with additional evidence or appeal to the Administrative Appeals Office.
PERM audit affecting I-140: I-140 cannot be approved until PERM audit is resolved. Wait for PERM determination before I-140 can proceed.
What If Your I-140 Is Denied?
You may file a motion to reopen (with new evidence) or motion to reconsider (arguing legal error) within 30 days.
Alternatively, appeal to the Administrative Appeals Office (AAO) within 30 days. Appeals can take 6 to 18 months for decision.
For PERM-based cases, denial may require starting a new PERM process. For non-PERM cases, you may simply file a new I-140 with stronger evidence.
I-140 for Different Categories
EB-1A (Extraordinary Ability): Self-petition; demonstrate extraordinary ability through extensive evidence of national or international acclaim.
EB-1B (Outstanding Researcher): Employer petition; demonstrate outstanding achievements in academic field with permanent research position offer.
EB-1C (Multinational Manager): Employer petition; demonstrate one year of managerial employment abroad with qualifying multinational organization.
EB-2 with PERM: Employer petition; approved PERM plus advanced degree or exceptional ability evidence.
EB-2 NIW: Self-petition; advanced degree or exceptional ability plus national interest justification.
EB-3: Employer petition; approved PERM plus evidence meeting job requirements.
Self-Petition vs. Employer Petition
Self-petition categories (EB-1A, EB-2 NIW) offer significant advantages: no employer dependency, no PERM required, and you control the process.
Employer petition categories require employer cooperation throughout the multi-year process. Job changes can disrupt the process.
Some individuals qualify for multiple categories and file concurrent petitions to maximize flexibility.
