Options If Your I-140 Petition Is Denied by USCIS

In order to obtain an employment-based green card, U.S. employers or, in a few cases, the foreign workers themselves, must file an I-140 petition with United States Citizenship and Immigration Services (USCIS). Once USCIS approves the I-140, the foreign worker can take the next step and apply for a U.S. green card (lawful permanent residence).

But what can you do if USCIS denies the I-140 petition? This article explains the options, addressing both situations where:

• a U.S. employer filed the I-140 petition on the worker's behalf (as is required in most cases), and
• situations where the foreign worker filed the I-140 (called "self-sponsoring").

What If USCIS Denied Both the I-140 and the I-485 at the Same Time?

In some cases, it's possible for the would-be immigrant to submit an I-485 Application for Adjustment of Status (the U.S.-based version of a green card application) at the same time as the I-140 visa petition, through a process called concurrent filing. If USCIS denies the I-140 in this concurrent filing situation, and if there is no other I-140 petition to support the I-485 application, USCIS also will deny the concurrently filed I-485, because there no longer is an I-140 to support it.

That is a difficult and complex situation beyond the scope of this article. It's one that calls for seeking an immigration attorney right away.

Is It Okay to Reapply to USCIS With a New I-140?

If USCIS denies an I-140 petition, the petitioning U.S. employer or foreign worker has the option of reapplying. As part of the denial notice, USCIS will send an explanation of the reasons for the decision. Carefully read all of these reasons and try to proactively address them in the second petition. Be sure to include as much evidence as possible to support the new petition.

For example, let's say the U.S. employer submitted the I-140 petition to USCIS based upon an approved PERM labor certification. Per the approved PERM, the job offer requires that the employee possess a master's degree in finance. You indeed have a master's degree in finance, but your employer forgot to include a copy of your degree with the I-140 petition. USCIS denies the petition, stating that it did not contain evidence of your (the beneficiary's) credentials. If your employer decides to reapply on your behalf, it should be sure to include a copy of your master's degree the next time around.

Submitting new evidence to USCIS is not enough by itself: The employer petitioner will have to resubmit ALL of the previously submitted evidence as well, and pay the USCIS filing fee again.

Be sure to communicate with your employer in order to make sure that all of the required information is present in the second filing. One way to do this is to compare the denied petition to the new petition before the filing. Make sure that all materials are up to date, corrected (if there was a mistake previously such as a misspelling or other clerical error), and organized, so as to make it easy for the USCIS officer to review the petition.

Here are two areas to pay particular attention to when filling out Form I-140 a second time:

1. If the I-140 petition is based upon an approved PERM from the Department of Labor, then in Part 4 of the I-140 form, you will need to answer questions about whether the filing includes an original approved PERM.
2. Additionally, you will have to answer YES to the question on the form that asks, "Has any immigrant visa petition ever been filed by or on behalf of this person?" and provide the USCIS receipt number for the previous I-140 petition.

Can You Appeal USCIS's Denial of an I-140 Petition?

If USCIS denies the I-140 petition, the U.S. company or person who filed it (the petitioner) can appeal the denial. USCIS will enclose information about the appeal process with the denial notification. The appeal will be adjudicated by the Administrative Appeals Office (AAO).

If choosing to appeal the denial, the petitioner must complete and file Form I-290B. It must be filed within 30 calendar days (which include weekends) from the date the petitioning employer received the denial (33 days if the decision arrived by mail). Include additional evidence with the appeal if you believe that this documentation will strengthen your case.

If the petitioner isn't careful to mail the I-290B to the correct address, USCIS will reject it. Additionally, the petitioner must include the appropriate filing fee, or the appeal will be rejected. One can find this information at the USCIS I-290B page.

Historically, appeals took a long time to process, up to three years in some cases. Per the AAO's posted time frames (as of mid-2025), however, it is taking close to six months to receive a decision on most I-140 appeals. You can view these time frames at the AAO Processing Times website. Because of this, and the fact that an appeal involves convincing the U.S. government that it made a mistake, simply returning to the starting point and reapplying is often easier.

What Is My Immigration Status After USCIS Denies My I-140 Petition?

If you are living in the United States now on a nonimmigrant visa, the mere fact that USCIS denied your I-140 petition does not automatically terminate your lawful nonimmigrant status.

For example, let's say you are in the United States in H-1B status, and your status is valid through February 15, 2026. USCIS denies your I-140 petition on June 1, 2025. You remain in valid H-1B status, notwithstanding the denial of your I-140 petition.

Getting Legal Help

It's a good idea to talk with an immigration lawyer about the I-140 denial and your planning options. Learn more about Is an Immigration Lawyer Worth the Cost?