For candidates filing an EB-2 or EB-3 filing, it will be necessary for your Employer to obtain a certified Permanent Labor Certification, aka PERM, before filing the I-140. For further details please refer to our previous article regarding PERMs, which can be found at:
This article is intended for candidates who are filing an I-140 based on an EB-2 or EB-3 filing, as these are the most common Employment-based petitions that are filed using form I-140.
Once the PERM is approved by the Department of Labor (DOL) the Employer will receive a certified Labor certification, which is valid for a total of 6 months. The I-140 application is an Immigrant Petition and is filed with USCIS.
The current filing fee is $700.00. For an additional $1,440.00, the I-140 can be filed in premium processing.
If the I-140 is filed in regular processing the application can take anywhere from 6 to 10 months to be adjudicated, depending on which service center is assigned the case.
If the I-140 is filed in Premium Processing, this will result in a much faster adjudication of the application. USCIS has 15 days to adjudicate the case, which means you will either receive a Request for Further Evidence (RFE), Notice of Intent to Deny (NOID) or a decision which could either be an approval or in theory, a denial. In the event of an RFE, you will typically have 87 days in which to respond. For cases filed in Premium Processing, the 15-day clock will recommence once a response is sent to the RFE.
Common Issues with the I-140
At the I-140 stage, an Employer is broadly required to demonstrate two issues. Firstly, that the Beneficiary is qualified for the proffered position and secondly that the Employer has the financial ability to pay the proffered wage from the Beneficiary’s priority date until the Beneficiary obtains his/her green card. Therefore, RFEs tend to focus on these two issues.
It is usually possible to avoid an RFE on the first issue provided the Beneficiary’s credentials are reviewed prior to starting the PERM. At PLG the Attorneys also review the financial ability aspect prior to starting a PERM to ensure that there will be no issues demonstrating financial ability at the I-140 stage. Ideally, an Employer will want to be paying the beneficiary the proffered wage by the time the PERM is filed. In this case, copies of the Beneficiary’s paystubs can be submitted as evidence of wages paid. An issue can arise, however where the Beneficiary is earning less than the proffered wage. In this case a thorough review of the net income on the Employer’s tax returns should be carried out.
Where an Employer has filed multiple I-140’s, USCIS may issue an RFE asking the Employer to demonstrate the ability to pay the proffered wages of all I-140 Beneficiaries. This type of challenge can be overcome by showing a significant net income on tax returns. However, in the absence of this, the only way to overcome this type of challenge is to review the relevant regulations and make an argument that the Employer is not required to demonstrate the ability to pay the proffered wages of all I-140 beneficiaries. This argument involves complex legal issues and requires the assistance of an experienced Immigration Attorney.
Bona-fide offer of Employment
Recently USCIS has started to ask for evidence that there is a Bona-fide offer of Employment and is requesting copies of contracts between the Petitioner and the end-client, where the Beneficiary will ultimately work when he/she receives their green card. This is almost impossible to provide for a Beneficiary from a Country that is experiencing a backlog, such as India. Because the wait is so long for a green card it is difficult for an Employer to know exactly where the Beneficiary will be working and to provide contracts. This is another issue that is best dealt with by an experienced Immigration Attorney because USCIS is essentially asking for documents which it is not strictly entitled to.
For further details regarding this issue please visit our Senior Immigration Attorney’s website where he has posted an article on this:
Please note that the above issues are the most common issues that we see, but it is not a complete list. Each case is different and therefore each candidate may face different challenges.
Payment of Fees
Unlike the PERM process, there is no requirement that the Employer pays the fees associated with the I-140. While a lot of Employers may choose to pay the I-140 costs these can be transferred to the Employee.
For further details about filing an I-140 please contact our Senior Immigration Attorney, Chris Prescott at firstname.lastname@example.org.