I-140 Immigrant Petition

The I-140 petition is the second step in the employer based green card process. The sponsoring employer files an I-140 immigration petition with DHS within 180 days of PERM certification.

It is important to outline and review the I-140 petition with your attorney when preparing the PERM application (which is the first step of the green card process). Proper planning can have a significant, positive impact on how quickly an applicant can apply for a green card; significantly decrease the chance of an I-140 or green card denial; and ensure the applicant can remain working in the United States in the interim.

Ms. Troy has successfully handled numerous complex employment based cases across all employment based categories, for clients across the business spectrum: small non-profit organizations, large corporations and small to mid-sized companies in the private sector. She has successfully obtained green cards for L-1A and L-1B visa holders, E-2 investors, O-1 persons of extraordinary ability and researchers, H-1B, TN and E-3 applicants.

What Documentation Do I Need to File?

When filing the I-140 petition, the employer must demonstrate financial stability, an ability to properly pay the applicant from the date the PERM application was filed through green card approval and a desire to continue the applicant's employment. The employee must submit credible documentation verifying that he or she met all minimum job requirements for the sponsored PERM position before accepting employment in that position. This documentation generally includes diplomas and transcripts, detailed letters from prior employers, licenses/certificates and continuing education certificates.

What are the Advantages to an I-140 Approval?

The great advantage for all applicants regardless of visa category, is that they are now closer than ever to obtaining a green card. However, an I-140 approval provides an additional, great benefit to H-1B applicants and their U.S. employers. Normally a person can only retain H-1B status for six years and then must leave the United States for at least one year, before applying for H-1B status again. If the I-140 petition is approved before the sixth year expiration, the applicant will be eligible for three year H-1B extensions even though they have used up the entire six years normally given. This means the employer will save the attorney and government fees needed for employees who are only eligible for yearly H-1B extensions.

The approved I-140 has an added benefit for any employee. In the unlikely circumstance that the employee moves to a different employer, he or she can "retain" the I-140 filing date. The new employer needs to start the green card process again, however the applicant has eligibility to file the actual green card application based on the original I-140 filing date (as opposed to any date associated with the newer petition.)

My I-140 is approved. Can I apply for my Green Card right away?

The answer is, "It depends." The government divides all applicants into five categories and then allows a certain number of people in each category to apply for a green card per year. The applicant's category is determined based on the education and experience required for the sponsored position. Wait times are also determined by the applicant's birth country, with India, Mexico, China and the Philippines having separate quotas that are generally longer than for other applicants. Some applicants are permitted to file their green card application simultaneously with the I-140 petition. Others will wait 1-10 years for the opportunity to file. It is important to note that the employee's own educational and experience level is generally not the determinative factor in assigning the category level. The exceptions to this rule are those in the EB-1 category and those holding master's degrees or higher.

The three most common Employment Based Green Card categories and the education required for each are as follows:

  • EB-1: Fast Track to a Green Card.This category includes workers of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. EB-1 applicants get to skip the PERM filing (step one) and may file steps two and three simultaneously.
  • EB-2: This category includes professional positions requiring a master's degree or higher, a Bachelor's degree and five years of progressively responsible post degree experience, and workers of exceptional ability. EB-2 applicants may be eligible to file steps two and three simultaneously.
  • EB-3: This category includes all professional positions that require a bachelor degree and under five years of experience and skilled positions with two years or more experience needed. EB-3 applicants are not eligible to file steps two and three simultaneously at present.