Q1. What is the I-140 Petition?

A1. The I-140 application is an employment-based petition for an alien worker to get an immigrant visa before he could become a permanent resident in the United States.

Q2. As an U.S. employer, who may I file I-140 for?

A2. You may file for your alien employees, if they meet any of the following criteria.

1) An outstanding professor or researcher, with at least three years of experience in teaching or research in the academic area, who is recognized internationally as outstanding:

2) An alien who, in the three years preceding the filing of this petition, has been employed for at least one year by a firm or corporation or other legal entity and who seeks to enter the United States to continue to render services to the same employer, or to a subsidiary or affiliate, in a capacity that is managerial or executive.

3) A member of the professions holding an advanced degree or an alien with exceptional ability in the sciences, arts, or business who will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.

4) A skilled worker (requiring at least two years of specialized training or experience in the skill) to perform labor for which qualified workers are not available in the United States.

5) A member of the professions with a baccalaureate degree.

6) An unskilled worker (requiring less than two years of specialized training or experience) to perform labor for which qualified workers are not available in the United States.

Our office could study on the specific position as well as the qualifications of your alien employee and help you to start the process. Please contact Mr. Jeff Z. Xie Esq. or go to www.xielaw.com for a free evaluation.

Q3. What are the differences between various kinds of I140 petition?  

A3. According to the specific qualifications and requirements, the I-140 petition is categorized into five preferences. The First preference: Priority Workers including persons of extraordinary ability, outstanding professors and researchers, and multinational organization executives and managers.  The Second preference:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. The Third preference:  Skilled Workers, Professionals, and Other Workers. The Fourth Preference provides for special immigrants including religious workers, court dependents, returning residents and others. The Fifth preference is an investor provision, which grants residency to persons who invest significant funds in the U.S. and create 10 jobs for U.S. workers.

Q4. Can I apply for my future employee who is not in the U.S. at the time of the I-140 filing?

A4. Yes. After the I140 gets approved, the employee will go through consular processing to apply for immigrant visa with the U.S. embassy/consulate abroad before entering into the U.S.

Q5. How shall I start the I-140 petition for my alien employee?

A5. Please contact Mr. Jeff Z. Xie Esq. or visit our website at www.xielaw.com  for a free evaluation. The attorney will help you decide whether a PERM (Labor Certification) is needed for the I-140 petition.

Q6. When to apply the I-140 petition for my alien employee?

A6. It is advisable to start the process as early as possible. To be more specific, if it is PERM-based I-140 petition, the application has to be submitted to USCIS within 180 calendar days after the PERM approval. If it is not PERM based, you can file the I-140 anytime. Please contact Mr. Jeff Z. Xie Esq. or visit our website at www.xielaw.com  for more detailed info. 

Q7. Does the employer have to pay for the attorney fee and filing fee for the I-140 petition?

A7. Not necessary. USCIS does not require the employer to pay for the attorney fee or filing fee for the I-140 petition.

Q8. Do I need to provide federal tax return to USCIS for the I-140 petition?

A8. It depends on the size of the entity/organization. If the company or organization employs less than 100 workers, USCIS requires a copy of the latest Federal Tax Return and certain financial documents for adjudication.

Q9. Where to file the I140 petition?

A9. Depends on the place of the employment, the application will either be submitted to USCIS Texas Center or Nebraska Center.

Q10. How long does it take for the I-140 to be approved?

A10. It varies from category to category and case by case. The processing time table is available at < https://egov.uscis.gov/cris/jsps/ptimes.jsp >.

Under certain circumstances, selected I-140 petitions are eligible for Premium Processing, by which USCIS charges for an extra $1000 and the officer is supposed to reach a decision within 15 days. Please contact Mr. Jeff Z. Xie Esq. to find out whether your case is eligible for premium processing service.

Q11. After I-140, when to apply I-485 for Green Card?

A11. It depends on the I140 categorization (EB1, EB2, or EB3) and the country-of-birth of the alien employee. At the moment, for all I-140 cases filed under EB1 category, the alien could file I-485 concurrently with the I-140 petition or anytime afterwards. For I-140 cases under EB2, the same rule applies except for aliens who were born in PR China and Indian. They could only file I-485 when the priority date becomes current based on the latest Visa Bulletin. For the beneficiaries of I-140 EB3 category, the alien employees also need to wait for the priority date becomes current. The visa bulletin is available at

< http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html>.

For detailed instructions on how to read the visa bulletin, please contact Xie Law Office.

Q12. Do I need to pay the prevailing wage listed on the PERM once the I140 approved?

A12. The employer is not required to pay the alien employee the prevailing wage listed on the PERM until the alien gets the green card.

Q13. Do I still need to extend the H1B for the alien employee after the I-140 gets approved?

A13. Yes. I-140 as an immigrant petition, does not grant a legal status to the alien employee upon its approval. It is always advisable to keep the H1B status for your alien employee until he/she receives the green card approval.

Q14. Do I need to withdraw the I-140 or report to USCIS if the alien employee leaves the company?

A14. USCIS does not require the employer to do so. As for case specific questions, please contact your corporate attorney or Mr. Jeff Z. Xie Esq.

Q15. My company has filed I-140 for the alien employee, now the company is to be merged with a competitor company, do I need to inform USCIS?

A15. Yes. The employer must file I-140 amendment when it: (a) is a successor in interest because it has been bought out, merged or had a significant change in ownership; (b) has changed its name; or (c) has moved (even within the same SMSA).

As for case specific questions, please contact Mr. Jeff Z. Xie Esq.

Q16. After PERM approval, the alien employee left the company. Can I file an I-140 requesting for substitution of the beneficiary based on the approved PERM Labor Certification?

A16. No. USCIS no longer allows substitution of the beneficiary.

Q17. After the PERM approval, our company and the representative attorney however never receive the hard copy of approval notice.  Is it still possible to file the I-140 for the alien employee?

 A17. Yes. For detailed instruction, please contact Mr. Jeff Z. Xie Esq.