Preparing and Filing Employment-Based Petitions
January 27, 2010
To ensure that employment-based petitions (Form I-140) will not be rejected or delayed in their adjudication, the United States Citizenship and Immigration Services (USCIS) has issued a question and answer guideline on how to prepare and file them.
An I-140 petition is filed by an employer to classify an alien beneficiary as eligible for immigrant visa based on employment. It may also be filed by an alien on his/her behalf if the alien is a person of extraordinary ability or if he/she is a professional with advanced degree or is of exceptional ability and seeks an exemption of the job offer requirement in the national interest.
The guideline instructs a petitioner to answer all the questions, indicate the correct visa category and submit all the required documentation and evidence with the forms. Failure to indicate a visa category will result in a rejection while indicating an incorrect category will result in the denial of the petition. If the beneficiary is eligible for more than one category, a separate petition with the required fee and documentation must be filed for each.
If a labor certification is required, the original copy must be submitted within 180 days from its approval. The labor certification must be signed by both the petitioner and the beneficiary.
The guideline also provides information regarding the transfer of priority dates, withdrawal of petition, change of employment and change in ownership of petitioner’s business.
The priority date of an employment-based petition is either the date of the filing of the labor certification or the date of the filing of the petition if no labor certification is required. If the beneficiary is entitled to an earlier priority date based on a previously approved petition, a copy of the petition approval must be submitted. Priority dates for the first three employment-based categories may be transferred.
If a petitioner requests the withdrawal of an I-140 petition, he/she must write the USCIS and include the receipt number, the name, address and phone number of the petitioner and the name of the beneficiary.
An alien beneficiary with a pending or approved I-140 petition but whose adjustment of status (I-485) application has been pending for 180 days may transfer to another employment provided the new job is the same or has a similar occupational classification.
The beneficiary must send a letter from the new intended permanent employer specifying the job title and duties, the minimum education or training requirement, the date the alien beneficiary began (or will begin) employment, and the offered salary or wage. The letter should include a copy of the I-140 approval notice or receipt and a copy of the Form I-485 receipt notice.
Change of employment is allowed even though the I-140 petition is still pending provided the petition was approvable when filed. This means that the petition contained a valid job offer at the time it was filed and that it was filed on behalf of the alien.
Regarding the issue of a successor employer using the labor certification filed by a predecessor, the guideline states that this is allowed provided the job offer of the successor is the same as the job offer of the predecessor. The successor must provide evidence of eligibility in all respects such as proof of the predecessor’s ability to pay the proffered wage as of the filing date of the labor certification.