How Employers Prepare and File I-140 Visa Petition for Foreign Worker

After having gone through the recruitment process and obtained labor certification from the U.S. Department of Labor (DOL), the U.S. employer can at last turn to interacting with the U.S. immigration authorities. At this point, the employer must file what’s called an immigrant visa petition on USCIS Form I-140. It must do so before the approved labor certification expires, that is, within 180 days of its approval.

During this part of the process, the employer is known as the “petitioner,” and the foreign national is the “beneficiary.” In a few rare cases, the foreign national can file the petition without an employer’s help (and become a self-petitioner), but only if the person’s skills are so high-level that he or she doesn’t need a job offer to immigrate through employment—more specifically, if the person either:

• has extraordinary ability in the sciences, arts, education, business, or athletics (a subcategory of the employment first preference category), or
• is a professional holding an advanced degree, or with exceptional ability in the sciences, arts, or business, and claiming to qualify for a national interest waiver (a subcategory of the employment second preference category).

Form I-140 is available at www.uscis.gov—and it comes with extensive, worthwhile instructions.

What Information Form I-140 Requires

The object of the I-140 petition is to prove that the foreign national qualifies for the job as it is described in the labor certification or that the person meets the requirements to file without the approved labor certification. Also, the employer must show that it has the financial ability to pay the employee’s wage.

The form takes care of some other details, like informing USCIS whether the applicant will be continuing with the immigrant visa application through a consulate outside of the U.S. or through a U.S.-based USCIS office. If the person is already lawfully present within the United States, he or she will most likely want to select the option for going through a U.S.-based USCIS office (that is, adjusting status).

Form I-140 also provides space to list the applicant’s spouse and children. It’s important to make sure the employer doesn’t leave anyone off the list, even if that person doesn’t want to immigrate now. USCIS wants to know about all family members, and if someone who wasn’t on the list decides to immigrate later, it may be difficult to convince USCIS that the person is really a member of the family.

Documents to Accompany Form I-140

The employer will need to collect and prepare a number of forms and documents to file with the I-140 visa petition. Regardless of the job category, these will include:

• Fee ($580 as of 2012)
• Approved labor certification or evidence of qualifying as a priority worker of extraordinary ability, Schedule A, or as a second preference worker of exceptional ability.
• Evidence that employer can actually pay the wage being offered, such as federal tax returns, annual reports, or audited financial statements. Alternatively, for an applicant already working for the employer on a nonimmigrant visa, the employer may use W-2 forms and pay stubs generated since the PERM application was first filed, in order to demonstrate that it has already been paying the required wage.
• Evidence that the applicant has the education necessary to perform the job, such as diplomas and transcripts from colleges or universities, plus a credential evaluation if the person has a foreign (non-U.S.) degree.
• Evidence that the person has the training or experience necessary to perform the job, such as professional certificates or letters proving previous job experience.
• If requesting quick (premium) processing: Form I-907, with filing fee ($1,000 in 2012).

In addition, the employer must submit detailed evidence of the person qualifying for the particular category of employment-based green card. For example, this might include evidence of the person’s international recognition for EB-1 status; or proof of past managerial employment for the EB-1C category.

Mailing the Visa Petition

The employer must submit the immigrant visa petition—Form I-140, accompanying documents, and the fee—to the USCIS regional service center indicated on the USCIS website.

Alternatively, the employer may file Form I-140 at the USCIS website using a credit card to pay the filing fee. However, the employer will still have to send the supporting documents by mail. In that case the Form I-140 will automatically be decided on by the USCIS Texas Service Center.