Q1. Why do I need to file I-140?

A1. The I-140 is an employment-based petition that grants you an immigrant visa before you are eligible to apply for a Green Card. Besides, after filing I-140 or upon its approval, you may also be eligible to extend your H or L status beyond the 6-year maximum period.

Q2. What does my employer have to do if I would like to file I140?

A2. If you are NOT eligible to file I-140 by yourself, you have to obtain the sponsorship of your employer to help you file PERM (labor certification) in the first place. Only after PERM approval, the employer could file the I140 on your behalf. For more detailed info, please contact Mr. Jeff Z. Xie Esq. or visit our website at www.xielaw.us.

Q3. Can I ask some employer, other than the one I'm working for right now, to apply I140 for me?

A3. Yes. There is no requirement that you must have been employed by the I-140 petitioner at the time of filing or while the case is pending. However, the offer of employment must be bona fide. In other words, at the time of the filing, the I-140 petitioner must have the intent to employ you. As for specific questions, please contact Mr. Jeff Z. Xie Esq.

Q4. Can I file I140 without the sponsorship of my employer? If so, under what conditions?

A4. Yes, besides filing I140 upon PERM approval, a person may file this petition on his or her own behalf if he or she:

1. Has extraordinary ability in the sciences, arts, education, business, or athletics demonstrated by sustained national or international acclaim, whose achievements have been recognized in the field; (EB1a)
2. Is a member of the profession holding an advanced degree or is claiming exceptional ability in the sciences, arts, or business, and is seeking an exemption of the requirement of a job offer in the national interest (EB2-NIW).

To find out whether you are qualified for self-petition, please contact Mr. Jeff Z. Xie Esq. or go to Case Evaluation for a free evaluation.

Q5. After PERM approval, what do I need to prepare for I-140 filing?

A5. Besides certain personal info and documents, you need to get your degree certificate, transcripts and experience or skill verification letters ready. They will be submitted to USCIS as evidence that you meet all the requirements for the position listed on the PERM form.  For the clients of Xie Law Office, a document list will be sent out regarding the preparation for your I-140 filing.

Q6. Under which categorization will my I-140 petition be filed?

A6. If your I-140 petition is based on PERM approval, the education and experience requirements listed on your PERM application will determine whether your I-140 petition will be qualified as EB2 or EB3 preference. For more detailed info, please contact Mr. Jeff Z. Xie Esq or visit our website at www.xielaw.com.

Q7. When can I file the I-485 application for Green Card after I-140 petition?

A7. It depends on your country-of-birth, the priority date of your I-140 petition, and the info on the latest Visa Bulletin. For more detailed info, please contact our office or visit our website at www.xielaw.com.

Q8. What is the priority date for my I-140 petition? And where can I find it?

A8. If it is PERM-based I-140 petition, the date when your PERM was filed with Department of Labor is your priority date. It is listed on your PERM approval notice.

If it is self-petitioned I140, the receipt date of your I140 application is the priority date. You could find it on your I140 receipt notice.

Q9. Can I file for more than one I-140 petition? If so, how shall the Priority Date be determined?

A9. Yes. If your second I-140 was filed after the approval of the first one, you can request for a transfer to have the second I-140 bear the same priority date as the first one.

Q10. I'm an H/L visa holder, can I still travel abroad after I submitted I140? Do I need to bring any related documents with me?

A10. Yes, if you have a valid H/L visa, you can surely travel abroad after I140 submission and enter U.S. again. There is no need to take additional I140 documents with you. However, if you are ever asked whether you have submitted immigrant petition on Form DS-156 or DS-157, you shall answer yes.

Q11. I'm a TN visa holder, can I still travel abroad after submitting I-140?

A11. As a TN visa holder, it is required to prove that you have NO intention to immigrate. So after submitting I140 immigrant petition you could not extend or renew your TN visa. Therefore you may have some trouble getting back to the U.S. under TN again. The good news is, TN holder can have a 3-year validity TN visa. You should work with your attorney to plan your green card case if you intend to keep TN status.

Q12. I'm a nurse, can the hospital sponsor me to apply for I140?

A12. Yes. Please contact Mr. Jeff Z. Xie Esq. or go to www.xielaw.com for a free evaluation.

Q13. How long does it take for the I-140 to be approved? Can I apply for premium processing?

A13. It varies from category to category and case by case.  You can check the processing time table in our Immigration Library Free Info section.

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.

Q14. I have just submitted I-140 and my H1B has reached the six-year limit, can I extend my H1B and stay in the U.S.?

A14. If your PERM or I-1140 application has been pending for more than 365 days, you can request  beyond the six year limit. Once your I140 gets approved, you can request for H1B extension in three-year increments until you get the green card. For more detailed info on H1B extension, please contact Mr. Jeff Z. Xie Esq. or visit our website at www.xielaw.com.

Q15. What is I-140 portability?

A15. I-140 portability refers to the fact that based on AC21, the approval of a Form I-140 employment-based immigrant petition shall remain valid when an alien changes jobs, if:

• A form I-485, on the basis of the I140 petition has been filed and remained un-adjudicated for 180 days or more; and
• The new job is in the same or similar occupational classification as the job for which the PERM labor certification or approval was initially made.

USCIS will adjudicate the application on a case-by-case basis. To find out whether you are eligible for the I-140 portability provisions, please contact Mr. Jeff Z. Xie Esq.

Q16. How is the 180 day calculated?

A16. The 180 days should be counted from the date USCIS receives the I485 filing, aka received date, not the notice date. And the 180 days are calendar days, not business days.

Q17. What is meant by "same or similar occupation"? Does it matter if my new job has a different title?

A17. The officer will make a case-by-case determination on whether the new job is in a same or similar occupation as the old one. Factors to be considered in adjudication include: A. same essential job duties. B. same DOT or SOC code. C. the wage. It doesn't matter if your new position is under a different title. For more detailed info, please contact Mr. Jeff Z. Xie Esq.

Q18. Does the new job have to be in the same geographic area as my old one?

A18. No.

Q19. Does my new employer (successor employer) have to pay me at least the prevailing wage as listed on the PERM ETA9089 form? Does the successor employer need to evidence "ability to pay"?

A19. No, not necessarily. USCIS will not require evidence of ability to pay from the successor employer.

Q20. In an I-140 portability case, does my new employer (the successor company) need to apply for a new labor certification or new I140 for me?

A20. No. Neither of them is needed.

Q21. Both my I140 and I485 were submitted in the July, 2007, I just got laid-off recently and my I-140 has not been approved yet. Am I still eligible for the portability?

A21. It depends whether your I140 would be approved later. If it gets approved then you are eligible for the portability. Otherwise, not. For more detailed info, please contact Mr. Jeff Z. Xie Esq.

Q22. I have filed I140 and I485 under the sponsor of my current employer. If I change jobs, does the successor employer have to apply I140 for me again?

A22. It depends. If you are eligible for portability, your new employer does not have to file PERM or I140 again.

If not, the new employer may have to file PERM or I140 for you again. However, if your previous I-140 was approved already, you could use its priority date for the second-filed I-140.

To find out whether you are eligible for the I-140 portability provisions, please contact Mr. Jeff Z. Xie Esq.

Q23. If I change jobs, does my old employer have to withdraw my I-140 or inform USCIS in any way?

A23. No, your I-140 sponsor does not have to do that. Unlike H1B, the employer does not have any legal obligation to inform USCIS of the termination of employment when you left the company.

Q24. What if my old employer withdraws the I-140 petition or informs USICS after I leave the company?

A24. If you are eligible for portability, it will not affect your pending I485 applications.

Q25. My I-140 was filed under Eb1(c) under the category of multinational managers or executives.  Can I change job to work for an unrelated company? Can I port to self-employment?

A25. Yes. If you are qualified to avail the benefits of portability, you can work as the manager or executive for an unrelated company or by self-employment. For specific questions, please contact Mr. Jeff Z. Xie

Q26. Does my priority date change as a result of portability?

A26. No.

Q27. My attorney filed I-140 petition for me.  Now USCIS requests for additional evidence.  Can your office help me on the RFE response?

A27. Yes, we can. Please learn more about our RFE services before you retain us.