A carefully prepared I-140 can help move an employment-based immigration case forward. A poorly documented petition, however, can lead to a Request for Evidence (RFE), denial, or significant delays.

 
Understanding eligibility, evidence, filing fees, and the relationship between the I-140 and the eventual green-card process is therefore essential. 

Form I-140 is used to petition U.S. Citizenship and Immigration Services (USCIS) for an employment-based immigrant classification for a foreign worker. The current USCIS form includes several employment-based classifications, including extraordinary ability, outstanding professors and researchers, multinational executives and managers, EB-2 professionals with advanced degrees or exceptional ability, EB-2 National Interest Waiver cases, and EB-3 professionals, skilled workers, and other workers. Importantly, Form I-140 is generally not the green-card application itself.

 
Instead, it establishes the worker's eligibility for a particular employment-based immigrant classification. Depending on the worker's circumstances and visa availability, the next stage may involve:

 
        • Form I-485, Application to Register Permanent Residence or Adjust Status, if the worker is eligible to adjust status in the 

United States; or 

        • Consular processing through the U.S. Department of State if the worker will complete the immigrant-visa process abroad. 

This distinction is important because an approved I-140 does not automatically grant permanent resident status. 

Eligibility to file an I-140 depends on the immigrant category.

For many employment-based categories, a U.S. employer or prospective employer files the petition on behalf of the foreign worker.

This is common in EB-2 and EB-3 cases.

However, some categories permit the foreign national to self-petition. For example, certain individuals seeking classification as persons of extraordinary ability may file for themselves. EB-2 National Interest Waiver applicants may also self-petition if they qualify for the underlying EB-2 classification and satisfy the NIW requirements. 

The first question should therefore be: Which employment-based immigrant category is appropriate for this worker and position? 

Choosing the wrong classification can create unnecessary complications later. 

EB-1: Extraordinary Ability

 

The EB-1 extraordinary ability classification is designed for individuals who have demonstrated extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

Unlike many employer-sponsored categories, an individual may generally self-petition in the extraordinary-ability classification. 

The evidence must demonstrate that the beneficiary satisfies the applicable regulatory criteria and merits approval based on the totality of the evidence.

EB-1: Outstanding Professors and Researchers 

This classification applies to internationally recognized professors and researchers who meet the regulatory requirements, including the required level of international recognition and qualifying academic or research experience. 

Generally, an employer must file the petition for this classification. 

EB-1: Multinational Executives and Managers 

Certain multinational executives and managers may qualify for EB-1 classification when they meet the applicable requirements concerning qualifying employment abroad and employment with a related U.S. organization. 

These cases require careful documentation of the corporate relationship and the worker's managerial or executive duties. 

EB-2: Advanced Degree or Exceptional Ability 

The EB-2 category generally covers professionals holding advanced degrees and individuals who demonstrate exceptional ability in the sciences, arts, or business. 

Many employer-sponsored EB-2 cases require a labor certification from the U.S. Department of Labor before the I-140 is filed. 

However, the National Interest Waiver (NIW) provides an important exception. A qualifying individual may seek a waiver of the job-offer and labor-certification requirements if the statutory and USCIS requirements for an NIW are satisfied. 

EB-3: Professionals, Skilled Workers, and Other Workers 

EB-3 is another major employment-based category. It includes: 

         • Professionals;
        • Skilled workers; and
        • Other workers. 

The appropriate classification depends largely on the requirements of the permanent position and the beneficiary's qualifications. 

For employer-sponsored EB-3 cases, the labor-certification process is often a critical preliminary step. 

One of the most important issues in employment-based immigration is determining whether PERM labor certification is required.

 
For many employer-sponsored EB-2 and EB-3 cases, the employer must obtain an approved labor certification from the Department of Labor before submitting the I-140. 

The labor certification is designed to establish that there are not sufficient able, willing, qualified, and available U.S. workers for the position and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

But not every I-140 requires PERM. 

For example, certain EB-1 categories and EB-2 National Interest Waiver cases can proceed without the traditional PERM labor-certification process. 

Determining this at the beginning of the case can significantly affect the overall strategy and timeline. 

USCIS requires petitioners to submit evidence establishing eligibility for the requested classification. The I-140 instructions specifically state that supporting evidence and documents must be submitted with the petition.
Depending on the category, supporting documentation may include:
       • Evidence of the beneficiary's education;
       • Academic degrees and transcripts;
       • Employment verification letters;
       • Evidence of qualifying work experience;
       • Professional licenses, where required;
       • Awards and publications;
       • Evidence of professional memberships;
       • Documentation of compensation;
       • Evidence concerning the employer's ability to pay;
       • Approved labor certification, when required;
       • Evidence of the employer's corporate relationships;
       • Evidence supporting extraordinary ability or exceptional ability;
       • Evidence supporting a National Interest Waiver; and
       • Other documents specifically required by the applicable classification.

 
The evidence should not simply be extensive. It should be relevant, consistent, credible, and organized around the legal requirements of the classification. 

A central issue in an I-140 case is whether the foreign worker actually meets the requirements of the offered position or immigrant classification.

 
For example, if a labor certification requires a particular degree or amount of experience, the beneficiary must demonstrate that he or she possessed the required qualifications by the relevant date. 

USCIS evaluates eligibility based on the facts and evidence presented in the petition. Its guidance emphasizes that eligibility must be established at the time of filing rather than based on speculation about future eligibility. 

This makes accurate documentation especially important. 

Employers should therefore compare the job requirements, labor certification, beneficiary's résumé, educational records, and employment history before filing. 

The current USCIS fee schedule lists the standard Form I-140 filing fee at $715, with an additional Asylum Program Fee generally applicable to I-140 filings. The Asylum Program Fee is currently $600 for regular petitioners, $300 for qualifying small employers or self-petitioners, and $0 for qualifying nonprofits.

 
Because USCIS fees and filing requirements can change, petitioners should verify the applicable fees immediately before filing. 

An incorrect filing fee can result in rejection, which can be particularly costly in cases where maintaining a priority date or meeting a filing deadline is important. 

For eligible I-140 classifications, petitioners may request premium processing by filing Form I-907 and paying the applicable additional fee.

 
USCIS's current fee schedule lists a premium-processing fee of $2,805 for eligible I-140 classifications. 

Premium processing can provide a substantially faster USCIS adjudication of an eligible I-140 petition. However, it is important to understand what premium processing does—and does not—accomplish. 

Premium processing concerns the USCIS adjudication of the petition. It does not automatically make an immigrant visa number available, eliminate a visa backlog, or guarantee approval. 

Therefore, employers should not assume that premium processing means the foreign worker will immediately receive a green card. 

Even after USCIS approves an I-140, the beneficiary may still need to wait for an immigrant visa number to become available.
The priority date is therefore extremely important in many employment-based immigration cases.

 
For PERM-based cases, the priority date is generally established when the labor certification application is properly filed with the Department of Labor. For categories that do not require labor certification, the priority date is generally associated with the properly filed I-140. 

The beneficiary's country of chargeability and employment-based preference category can affect visa availability. 

Consequently, employers and foreign workers should monitor the Department of State's Visa Bulletin rather than assuming that I-140 approval means the final green-card stage can immediately proceed. 

Several issues can create unnecessary complications, including:

 
Incorrect classification. The evidence may not actually support the category selected on Form I-140. 

Insufficient evidence. Simply asserting that a beneficiary qualifies is not enough. The petition should contain documentary evidence supporting the legal requirements. 

Inconsistent information. Differences between the résumé, labor certification, employment letters, forms, and supporting documents can raise questions. 

Failure to establish employer ability to pay. In applicable employer-sponsored cases, the petitioner may need to establish the ability to pay the offered wage from the relevant priority date onward. 

Incorrect fees or outdated forms. USCIS filing requirements can change, and using an incorrect form edition or fee can result in rejection.

USCIS specifically instructs petitioners to use the appropriate form edition and submit required evidence. It also warns that petitions must be properly signed; an invalid or missing signature can result in rejection or other adverse consequences.