bearded professor giving lecture to students" width="2560" height="1707" />If you’re seeking an employment-based green card, you or your employer may need to file this application.
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One of the primary ways to get a green card in the United States is through employment. For this, you generally need an employer to sponsor you by filing Form I-140, Immigrant Petition for Alien Workers. But not every employment-based green card requires Form I-140.
Whether you’re an employer or a prospective employee, this guide may help you determine if you need Form I-140. We explain who needs Form I-140, the prerequisites, how to file and what happens after you submit your application.
Form I-140 is a petition to ask the United States Citizenship and Immigration Services (USCIS) to determine that a noncitizen is qualified to receive an employment-based green card. Most often, employers fill out and submit Form I-140
Employees seeking EB-1, EB-2 or EB-3 visas need to file I-140 or have their prospective employer file the form.
To qualify for an EB-1 visa, you must show one of the following:
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To qualify for an EB-2 visa, one of the following must apply:
You may qualify for an EB-3 visa if you have a U.S. employer sponsor and a job offer to work as one of the following:
Some EB visas require a job offer, some require labor certification, some require both and some require neither. The category also determines whether the beneficiary (the intending immigrant) or the employer files Form I-140.
| Visa type | Job offer? | Labor certification? | Who files Form I-140? |
| EB-1 extraordinary ability | No | No | Beneficiary |
| EB-1 professors and researchers | Yes | No | Employer |
| EB-1 multinational executive | Yes | No | Employer |
| EB-2 granted a National Interest Waiver (NIW) | No | No | Beneficiary |
| EB-2 no NIW | Yes | Yes | Employer |
| EB-3 | Yes | Yes | Employer |
The permanent labor certification program, or PERM process, is run by the Department of Labor (DOL). When you apply for an employment-based immigrant visa requiring labor certification, you must prove the beneficiary isn’t harming U.S. workers. There are a few steps to this process, as outlined below.
The labor certification process begins when the employer requests a prevailing wage determination (PWD) using Employment and Training Administration (ETA) Form 9141. They file the ETA-9141 online through the DOL’s Foreign Labor Application Gateway (FLAG). With the information provided in the ETA-9141, the DOL determines what wage employees typically receive for the type of job being offered in the location they’ll work.
In addition, the employer must advertise the job to U.S. applicants and interview any applicants who meet the requirements in the job order. If the employer determines the worker is qualified, they don’t have to hire them. Unless they provide a valid reason, however, the employer may no longer sponsor the beneficiary.
Next, the employer files ETA Form 9089 through the FLAG system. With enough information, you’re often able to calculate the prevailing wage through O*NET and statistics from the Foreign Labor Certification Data Center before the PWD is issued, allowing you to prepare your application early. Once the PWD is issued, the employer may link it to Form ETA-9089 on FLAG and officially submit the ETA 9089.
Throughout 2023, the DOL has averaged processing times between 170 and 180 days for ETA-9089s.
If the DOL approves the ETA-9089, the employer may use it to file Form I-140. If the DOL denies the ETA-9089 based on incorrect or missing information, the employer usually has 30 days to appeal or request reconsideration.
The I-140 immigrant petition includes details about the employer, the job offer and the beneficiary. When you submit Form I-140, you ask USCIS to determine that the beneficiary qualifies for the requested visa.
You must submit different supporting documents with Form I-140. This may include but isn’t limited to:
You also owe an I-140 filing fee, which is currently $700.
Mail Form I-140 to the relevant USCIS location based on what other forms, if any, you file with it.
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Generally, I-140 processing time varies based on underlying preference category. Currently, some applications may take as little as three and a half months, while others may take about two years.
Those wishing to speed up the process may request premium processing by submitting Form I-907, Request for Premium Processing Service, and, currently, a $2,500 fee. USCIS should respond to most applications submitted with premium processing in 15 days. However, for multinational executives and NIWs, it may take up to 45 days.
If you reside outside the U.S., you usually have to wait for the I-140 to be approved before moving forward. Then you can begin consular processing at the nearest U.S. consulate or embassy to apply for your visa.
If you’re inside the U.S., consult the Visa Bulletin and USCIS adjustment of status filing chart to determine whether an immigrant visa in your desired category is available. If a visa is available, the beneficiary may file Form I-485, Application to Register Permanent Residence or Adjust Status, along with Form I-140. Often, you submit Form I-765, Application for Employment Authorization, as well to obtain work authorization while the I-485 is pending.
If an immigrant visa isn’t available, you usually must maintain an alternative legal status to remain in the U.S. Sometimes, you may have to depart the country while waiting.
The processes involved with filing Form I-140 vary based on which visa you’re seeking. Properly navigating these steps as well as what you need to do before and after often proves complicated. An immigration attorney may help make the process easier for an employer or beneficiary. They can determine what process to follow, what and when to file and what to do after filing.
Our experienced team would love to help you move forward. Schedule a free 15-minute call so we can connect you with an experienced attorney.
An I-140 approval means that USCIS has determined the beneficiary qualifies for an employment-based visa. A visa must become available before they receive a green card.
Generally, an employer sponsor files Form I-140 for a beneficiary seeking an EB-1, EB-2 or EB-3 visa. However, a beneficiary may file on their own behalf if they’re seeking an EB-1 extraordinary ability visa or an EB-2 National Interest Waiver (NIW) visa.
Evidence to submit with Form I-140 varies. You generally should include a copy of your approved labor certification, your passport, proof your employer is able to pay the wage, your relevant degrees or licenses, documentation of your educational background and training and evidence you’re qualified for the job.
To check the status of your I-140, you need to know your receipt number, which is printed on the lower left of the I-797, Notice of Action (titled “Receipt Notice”) that USCIS sends upon receipt of your I-140. Enter that number into USCIS’s case status checker at https://egov.uscis.gov/.
What happens if you lose your job after your employer files Form I-140 depends on where you’re at in the process. If you’ve already received a green card, you have work authorization and may find employment with another employer. If you’ve submitted Form I-485 and it’s been pending for 180 days, you may be able to change employers if you find a new one who offers the same or similar employment. In most other circumstances, you lose your visa eligibility.
Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.
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