Form I-140 Immigrant Petition for Alien Workers, Considerations for Employers

In U.S. immigration law, Form I-140 petition paves the way for employees to seek eligibility for an immigrant visa based on employment through a sponsoring employer.

Typically, it is the employer’s responsibility to initiate this process through their attorneys, by first filing for PERM certification with U.S. Department of Labor and then filing Form I-140 on behalf of the immigration employee.

Whether you are an employer seeking to sponsor a skilled foreign worker or a noncitizen pursuing an immigrant visa, our expertise is available to provide counsel on an ongoing petition or to guide you through starting the process from scratch.

In order to ensure that your Form I-140 is not rejected by USCIS, it is essential to submit the form with accurate information and well-organized supporting documentation. Moreover, the entire process (PERM filing, I-140 and I-485 filings) should be planned in tandem to ensure a process that highlights the strengths of the entire case.

To start, let us review the general filing tips provided on the USCIS page for Tips on Filing Forms with USCIS as of the writing of this article.

The following information is current as of the date of writing and should be considered legal advice. Note that U.S. DOL And USCIS requirements change from time to time, for case-specific counsel please contact our office.

When employers or their attorneys file form I-140, the following minimum requirements should be followed:

• Ensure to use the current version of the form, which can be found on USCIS’s Form I-140 page.
• Due to potential workload transfers between USCIS service centers, make certain to mail your form to the current filing address. For the correct mailing address, refer to USCIS’s Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Workers page. These addresses change very often, so make sure to check this right before filing.
• Make sure that the petitioner signs the form in the correct location and that the signature is executed properly including the correct date.
• When filing Form I-140 along with other related applications for the beneficiary, write the beneficiary’s name on the payment document (e.g., the memo line on a check). We recommend noting the form for which the fee is paid as well like this “beneficiary name – Form I-140 fee”
• Submit one check per form. Combining payment for multiple forms may result in the rejection of all forms if USCIS finds that one of the forms was not properly filed and must be rejected.
• If you choose to submit Form I-907, Request for Premium Processing Service, with Form I-140, please note that each filing fee must be paid separately. A combined fee payment for these forms will lead to the rejection of the entire package.

Attorneys: If applicable, remember to submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, with original signatures.

Additional Advisory on Completing Form I-140

• Make sure to provide the petitioner’s (not the attorney’s) contact information in Part 1.
• Select only one visa preference category in Part 2. USCIS will reject your form if you leave Part 2 blank OR if you select more than one category.
• If the beneficiary will be placed at a client site, the petitioner must identify the address of the client location in Part 6.
• For E-11 classification and national interest waiver filings, include information in Part 6. At a minimum, please complete: 1. Job title; 2. SOC code; and 3. Nontechnical description of the job. USCIS needs this information to verify the beneficiary’s/self-petitioner’s proposed endeavor or how they intend to continue to work in the area of expertise in the United States. If a nontechnical description of duties is too long, include an attachment but identify precisely where this information can be found. Identify on the attachment precisely which question is being answered, this includes writing in the page number, the part number and question number as well as writing out the question.

Filing Form I-140 with the required DOL-approved Labor Certification:

If you file Form I-140 and request a visa category that requires a Department of Labor (DOL)-approved labor certification, USCIS will review your petition to verify that it contains a valid labor certification. If the certification is not included, the I-140 Petition will be denied.

Categories that require a PERM certification at filing are:

• E-21, Member of the Professions Holding an Advanced Degree or a Person of Exceptional Ability (Form I-140, Part 2, Option 1.d.);
• E-32, Professional (Form I-140, Part 2, Option 1.e.);
• E-31, Skilled Worker (Form I-140, Part 2, Option 1.f.); and
• E-W3, Other Worker (Form I-140, Part 2, Option 1.g.).

The petitioner must submit the labor certification with Form I-140 during the 180-day validity period annotated at the bottom of every page of the labor certification. (The PERM labor certification is issued with a validity period of 180-days, the filer must submit Form I-140 during this period or the labor certification cannot be used. USCIS will reject your Form I-140 if the petitioner does not include a valid labor certification unless it is clearly stated that the filing is under one of the following two exceptions:

• If you need a duplicate labor certification, check the box marked “Yes” at Part 4, Item 10 of the form. Write that request in large, bold font on a brightly colored piece of paper and place the paper directly under your Form I-140. Requests for a duplicate ETA-750 must be initiated by USCIS. The following steps are suggested when requesting a duplicate ETA-750 through USCIS. Please include on the top of the I-140, Petition for Alien Immigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following: LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT On the same sheet, the following information should also be included: Attorney name; Petitioner’s name; Beneficiary’s name; ETA case number; Priority Date; Specify that the case was filed on ETA-750; Proper fee, signature and all required supporting documents; A print screen showing that the case has been certified. Provide the reason(s) for requesting that the Service Center secure a duplicate approved labor certificate from DOL, e.g. “Case was certified, original approved labor certificate was never received in the mail.”
• If you are filing Form I-140 as an amended petition and you already submitted the original labor certification with another Form I-140, check the box marked “Yes” at Part 4, Item 9 of the form. Place a brightly colored piece of paper directly under your Form I-140 and use large, bold font to write, “This Form I-140 is an amended petition and the labor certification has already been submitted.” Provide the receipt number of the previously filed Form I-140, if available.

If the labor certification’s validity period expires on a Saturday, Sunday, or legal holiday, USCIS will accept the petitioner’s Form I-140 with the labor certification on the next business day. However, it is advisable never to wait this long to file Form I-140. If the petitioner files your Form I-140 with an expired labor certification after the next business day, we will reject it.

Attorneys: the DOL-approved labor certification must be signed by the employer, an attorney/agent/representative, and the beneficiary (employee) before submitting it with Form I-140.

If the petition is filed under the E-21, a Person of Exceptional Ability visa category, and the petitioner is not requesting a national interest waiver (Form I-140, Part 2. Option 1.i.), be sure to identify which of the six regulatory criteria the beneficiary is attempting to satisfy and the relevant evidence for each individual criterion.

Additional tips for Filing Form I-140 with the required DOL-approved Labor Certification:

Make sure to organize your Form I-140 package in this order:

1. Form G-28, Notice of Entry of Appearance as Attorney or Representative, if any;
2. Form I-140;
3. The original labor certification; and
4. Other supporting documentation, including but not limited to:

• Official academic records such as diplomas and transcripts to show the beneficiary meets any educational requirements for the position;
• Work experience letters from previous employers giving the name, address and title of the employer and a description of the beneficiary’s experience to show the beneficiary meets any work experience requirements for the position. These experience letters should provide exact and specific information, for example, make sure the employee obtains an experience letter that outlines their exact start date, and end date at any prior place of employment.
• Training letters from trainers giving the name, address and title of the trainer, and a description of the training received, to show the beneficiary meets any training requirements for the position; and
• Federal tax returns, audited financial statements or annual reports to show that the employer has the ability to pay the proffered wage to the beneficiary beginning from the priority date onward. See this article for additional information: USCIS Issues Policy Guidance on Employers’ Ability to Pay Proffered Wage for Certain Employment-Based Petitions

Submitting Evidence with Form I-140:

Group your evidence according to the eligibility requirement you are trying to meet:

• If the beneficiary may be entitled to an earlier priority date based on a previously approved Form I‑140, please provide a statement requesting the earlier priority date. Include a copy of the Form I-797, Notice of Approval, for the previous Form I-140 and detailed reasoning for eligibility.
• If you are documenting the beneficiary’s publications or citations of the beneficiary’s work, help USCIS adjudicators locate proper information by highlighting the beneficiary’s name in the relevant articles. Generally, any pertinent information should be highlighted to help the adjudicator. Petitioners do not need to send a full copy of the beneficiary’s dissertation, thesis, or research paper, or the one that has cited the beneficiary’s work. However, petitioners should include the title page and the portions that cite the beneficiary’s work and the “works cited” or bibliography section. Regardless if the entire article or work is included or not, the proper citation to the work (if any) should be provided in a bibliography section.
• Cases with supporting documentation over 100 pages can be tabbed and labeled at the bottom of the first page of each piece of evidence. Petitioners should provide a detailed list of the evidence they are submitting and which eligibility criteria that evidence applies to. A document that can support multiple eligibility requirements should be identified as such.
• If you are submitting to a USCIS lockbox, please use colored paper rather than tabs, as tabs make scanning difficult. When tabs are provided, include an extra cover sheet under each tab, so that a tabbed sheet can be discarded for scanning.
• In certain cases, petitioners are allowed to submit secondary evidence if required evidence cannot be obtained. When doing so, petitioners are advised to provide thorough explanations as to why secondary evidence qualifies in satisfaction of a particular requirement, as well as an explanation of why requested evidence cannot be obtained or does not exist.
• Affidavits cannot come from the petitioner or the beneficiary. Anyone who writes the affidavit for the case must have direct personal knowledge of the event and circumstances and must swear to or affirm the information in the affidavit.

Filing Tips for Specific Visa Categories that Do Not Require a DOL-Approved Labor Certification

E-11, Person of Extraordinary Ability (Form I-140, Part 2, Option 1.a.)

• Identify which of the 10 regulatory criteria the person is attempting to satisfy and the relevant evidence for each individual criterion.
• Provide a statement and evidence that the person is coming to the U.S. to continue to be employed in their area of sustained national or international acclaim. See 8 CFR 204.5(h).

E-12, Outstanding Professor or Researcher (Form I-140, Part 2, Option 1.b.)

• Identify which of the six regulatory criteria the beneficiary is attempting to satisfy and the relevant evidence for each individual criterion.
• Provide evidence that the beneficiary has at least three years of experience in teaching and/or research in the academic field.
• Submit a copy of the petitioner’s actual job offer issued to the beneficiary. This letter or contract must include the job title, terms, and conditions of the position offered.
• If the beneficiary has changed positions since being initially hired, send the documentation listed above for each position the beneficiary has had. See 8 CFR 204.5(i).

E-13, Certain Multinational Executives or Managers (Form I-140, Part 2, Option 1.c.)

• Provide evidence and a cover letter that describes the:
  • Name of the foreign employer;
  • Position offered in the United States and duties to be performed;
  • Position held abroad and duties performed;
  • Years of employment;
  • Date the beneficiary transferred to the United States, if applicable; and
  • The claimed relationship between the foreign employer and the U.S. petitioner (affiliate, subsidiary, parent, etc.).
• Provide evidence that the U.S. employer has been doing business for at least one year before the day the Form I-140 was filed. See 8 CFR 204.5(j).

E-21, Member of the Professions Holding an Advanced Degree or a Person of Exceptional Ability Who is Requesting a National Interest Waiver (Form I-140, Part 2, Option 1.i.)

• Identify how the beneficiary qualifies for classification as a member of a profession with an advanced degree (for example, the beneficiary has an advanced degree or a bachelor’s degree followed by at least five years of progressive experience, or the beneficiary qualifies as a person of exceptional ability).
• Provide evidence to satisfy these three criteria:
  • The person s proposed endeavor has both substantial merit and national importance;
  • The person is well-positioned to advance the endeavor; and
  • It would generally be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. See 8 CFR 204.5(k) and Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

If You Want Us to Consider Multiple Visa Categories for a Beneficiary

If the petitioner is attempting to classify the beneficiary under multiple visa preference categories, separate Form I-140 for each requested visa category must be prepared and filed. Fees paid cover adjudication under one category per filing only. Each filing must include the required fee for each Form I-140 and separate supporting documentation for each requested visa category. These types of filings should be treated as separate cases, discuss with an experienced attorney regarding the timing and strategy of how and when to file under two separate categories.

If You Want to Correct the Visa Category You Selected in Part 2 of Form I-140

Once USCIS accepts Form I-140 for processing, they will generate an electronic record and subsequently issue Form I-797, Notice of Action (receipt notice), to both the petitioner and the representative mentioned on Form G-28. This receipt notice will clearly specify the visa category requested in Part 2 of Form I-140. It is imperative to verify the accuracy of this category.

In the event that the indicated visa category is incorrect, whether due to a clerical error by USCIS, immediate action should be taken. The petitioner should promptly contact the USCIS Contact Center to request a correction of the visa classification before USCIS reaches a decision on the submitted form. Timely communication with USCIS is crucial in ensuring the application proceeds smoothly and with the correct visa category.

In cases where USCIS denies Form I-140 due to an applicant’s ineligibility for the requested visa category, any associated applications filed along with it (e.g., Form I-485, Form I-765, or Form I-131) will also be denied. It is essential for applicants to ensure the accuracy and eligibility of their visa category request to avoid potential complications and denials of related applications. I-140 filings are notoriously difficult due to the prolonged nature of each case and the multi-layered approach USCIS uses in adjudication. Each I-140 filing in PERM category must reflect the information in the PERM filing, and each PERM certification must provide information that is accurate, credible, and supports both the PERM certification and the I-140 petition for which it is used. Our office represents clients in their I-140 petitions of all levels of complexity. Should you have an I-140 inquiry, we encourage you to contact us so that we can determine if we can assist you with your immigration case.