What is the I-140?

After the labor certification (LC) is certified, the I-140 must then be filed with USCIS. The petition asks USCIS to classify you as a foreign national who is eligible for an employment-based immigrant application. The I-140 itself does not give you a green card, and the approval of the I-140 will not grant you status nor provide you with a work permit. Instead, it gives you permission to apply for a green card based on your employer’s sponsorship.

Who files the I-140?

The attorney will file the I-140 petition on your behalf, which is sponsored by your employer. Your employer owns the I-140 petition.

When is the I-140 filed?

The I-140 must be filed while the LC is valid, and LCs are valid for 180 days. However, if you promptly provide all necessary information/documentation for I-140 filing, the I-140 will be filed as soon as possible.

Is premium processing available for the I-140?

Yes, the I-140 will generally be filed with premium processing. Premium processing allows you to receive a decision within 15 days of filing, unless USCIS issues a Request for Evidence. The premium processing fee is generally included in your contract with BDV, please refer to your contract for details.

What does the employer have to show USCIS for I-140 approval?

The I-140 petition includes the certified and signed LC. The employer must provide documentation that the full-time position is still available to you and that the employer has the ability to pay you. The employer’s ability to pay can be demonstrated through the company’s financial documents and/or tax documents.

What is a Request for Evidence?

Once USCIS begins processing the I-140 petition, it may decide to request additional documentation before it can approve the petition. USCIS will send your attorney a Request for Evidence (RFE) letter describing what additional documents are needed, and it will provide a deadline for the response. Once your attorney submits the response, USCIS will resume processing the I-140.

Do I need to be in the U.S. for I-140 filing?

No, you do not need to be in the U.S. to file the I-140. However, if you a plan to adjust status from within the U.S., you will need to be in the U.S. when it is time to file your I-485 green card application.

Can I include dependents on the I-140?

The I-140 petition is specifically for you, sponsored by your employer. Your spouse and children will be included on the same I-140, but they will not receive their own I-140 approval. Your spouse and children will use your I-140 approval to apply for their green cards as your dependents, and each dependent will need their own I-485 (if applying for adjustment of status) or visa application (if consular) once it is time to apply for the green card.

Is there an interview for the I-140?

No, there is no interview for the I-140. You will only be interviewed when it is time to adjust status or consular process.

What is the Visa Bulletin?

The Visa Bulletin is issued every month by the Department of State. It shows which green card applications can be filed, and which filed applications can move forward to green card issuance, based on when the LC was filed. The Visa Bulletin also lets you estimate how long it will take before you get your green card.

What is a priority date, and why does it matter?

The priority date is the date your LC was filed. Think of the priority date as your place in line, because it determines when your green card application can be filed and when your green card can be issued. If your priority date is not current for green card filing on the Visa Bulletin (meaning that your priority date is after the cutoff date), the employer can file the I-140 petition, but you will not yet be able to file your actual green card application.

What is retrogression?

When the number of green card applications exceeds the expected number of filings, the Visa Bulletin may go into retrogression, or reflect cut-off dates for your priority date (your place in the green card line) that move backward. This happens as the government tries to balance the demand to stay within the visa cap for each category of visa.

What is cross-chargeability?

Generally, your place in line for when you can apply for and obtain an employment-based green card is based on your employment-based category - in this case, EB-3 unskilled, plus your country of birth. A few countries of birth have long visa backlogs (such as India and China).

“Cross-chargeability” is a useful exception. Under cross-chargeability, if you and your spouse were born in different countries and you both want to apply for green cards, you may elect to be “charged” to your spouse’s country if the green card line for your spouse’s country is faster. For example, if you were born in India but your spouse was born in France, cross-chargeability would allow you to use your spouse’s country of birth (France) to apply for the green cards for you and your spouse sooner.

Can my I-140 and I-485 be filed at the same time?

Yes, if your priority date is current for filing the green card application, the I-140 and I-485 can be filed together. Otherwise, if your priority date is not current, the I-140 will be filed first, and you will need to wait until your priority date is current before your green card application can be filed later.

Does approval of the I-140 mean I can file the I-485 or consular process immediately?

It depends. If your priority date is not current, you will need to wait until it becomes current to file the I-485 or consular process. Your approved I-140 will not expire while you wait for your priority date to become current.

Can my children obtain a green card?

Applicants for green cards may include their unmarried children under the age of 21 on their green card applications. To decrease the risk of children “aging out” (i.e., turning 21 before approval of the green card), the U.S. government created the Child Status Protection Act (CSPA) which locks in the child’s age in what is known as the “CSPA age”.

To qualify for CSPA:

If the above qualifications are met, then the CSPA age is calculated by applying this formula:

Age at time of visa availability - Pending time of I-140 = CSPA Age

Let’s apply this formula to an example.

Now apply the CSPA formula:

21 years and 2 months – 5 months = CSPA age of 20 years and 9 months.

This means that, in this example, your child has not aged out and would be eligible to apply for a green card.

NOTE: Because the Visa Bulletin is updated every month, if your LC has not been filed or is still pending, BDV cannot yet predict whether your child will age out before your priority date is current. Please let BDV know if you have an unmarried child who is 18 years or older. We will flag it for your assigned attorney to do a CSPA analysis once your LC is approved to see whether your child would be eligible for green card filing under CSPA.

Do I receive a green card once the I-140 petition is approved?

No, the I-140 approval does not provide you with a green card. You will receive your green card upon approval of the I-485 application (for adjustment of status) or upon approval of the immigrant visa and entry into the U.S. (for consular processing).

Can I drop my current visa status in the U.S. once the I-140 is approved?

No. If you are adjusting status in the U.S., you need to remain in another lawful status until your I-485 is filed.

My I-140 is approved. Does this mean that my I-485 will be approved?

Not necessarily. The I-485 (green card application) looks at issues that were not reviewed as part of the I-140 petition. For example, if you have a criminal record, worked without authorization, or had extended periods of unlawful presence in the U.S., this could impact your ability to get the green card even if your I-140 was approved. At the I-485 stage, the attorney will carefully review your immigration history and background to flag any possible issues you may encounter for green card processing.

Can I travel outside the U.S. and re-enter after my I-140 has been approved?

Yes. If you are currently in another status that permits you to travel (such as F1 student), you can continue to travel under the rules of your current status even after I-140 approval.

However, unless you are in H or L status, you will not be able to travel internationally and re-enter the U.S. from I-485 filing to until you receive your advance parole.

I am in the U.S. My I-140 is approved and my priority date is now current. What are the next steps?

Once your priority date is current, your attorney will file the I-485 (green card application) for you and your eligible dependents (spouse and unmarried children under 21). At the same time, your attorney will also file the I-765 and I-131 for you and your eligible dependents to receive temporary work authorization and permission to travel. You will also need to complete the immigration medical exam. Unless USCIS waives your interview, you will be scheduled for a green card interview at your local USCIS office. If your application is approved at the interview, USCIS will mail you your green card within several weeks.

I am outside the U.S. and will consular process. My I-140 is approved and my priority date is now current. What are the next steps?

As your priority date gets close to being current, the National Visa Center (NVC) will send your attorney the information to complete the DS-260 Immigrant Visa Application for you and your eligible dependents (spouse and unmarried children under 21) and upload all required documents. Once the NVC marks your case as documentarily-qualified, the NVC will send the case to the US consulate for final processing and the visa interview. When the consulate schedules your interview, you will complete the immigration medical exam and attend the interview. Upon approval of your visa, the consulate will place the visa in your passport, and you will enter the U.S. and become a permanent resident upon entry.

May I change employers after the I-140 Petition is approved?

The I-140 is employer, job location, and job duties specific. A change in employer, job location, or job duties could impact your I-140. Please discuss with BDV and your attorney if there are any changes to your role.

I am in the US and adjusting status. When do I need to start working for my EB-3 sponsor?

Once you receive both your I-140 approval and green card-based EAD approval, BDV’s Client Services team will assist you with the relocation process to start working for your sponsor. Our timeline is for clients to start working for their sponsors within 60 days from I-140 and EAD approval. Because your sponsor has a chronic labor shortage, you cannot delay starting work.

I am consular processing. When do I need to start working for my EB-3 sponsor?

Once you enter the US on your immigrant visa, BDV’s Client Services team will assist you with the relocation process to start working for your sponsor. Our timeline is for clients to start working for their sponsors within 60 days from entry into the US. Because your sponsor has a chronic labor shortage, you cannot delay starting work.

When should I move to my EB-3 sponsor’s worksite?

Once you receive both your I-140 approval and green card based EAD approval, BDV’s Client Services team will assist you with the relocation process to start working for your sponsor. Please DO NOT move to your sponsor’s worksite until you are contacted by the Client Services team to align on start date, specific worksite address, and orientation process.

I have worked for my EB-3 sponsor for one year and my I-485 is still pending. Can I transfer to a different sponsor?

You must satisfy your contractual agreement to work at least one year for your sponsor. If your I-485 is still pending after one year of work, we generally recommend that you remain employed with your sponsor. However, you may be able to transfer if the new position satisfies the "same or similar occupation" requirement for changing roles. Please reach out to the attorney for a legal evaluation and risk assessment at that time. If the attorney advises that this is possible, they will need to submit a Supplement J form to the government. Please note that this legal work is an additional fee, and it is not included in your contract with BDV.

What happens if I do not work for my EB-3 sponsor?

The EB-3 is an employment based green card program, where your employer is sponsoring you for a green card based on your willingness to work in the full-time, offered position. BDV’s Client Services team will help you with the relocation process to start work. Below are 5 consequences if you do not work for your EB-3 sponsor.