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 then apply for a U.S. green card (lawful permanent residence).
But what can you do when 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 on his or her own behalf (called "self-sponsoring").
In some cases, it's possible to submit an I-485 Application to Adjust Status (the actual green card application) along with your I-140 Petition through a process called concurrent filing. If USCIS denies the I-140 in this concurrent filing situation, and if there is not another 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 complex situation beyond the scope of this article and one that calls for seeking an immigration attorney right away.
If USCIS denies an I-140 petition, the petitioning 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 denial. Carefully read all of these reasons and try to proactively address them in the second application. Be sure to include as much evidence as possible to support the new petition.
For example, let's say the employer submitted the I-140 petition based upon an approved PERM labor certification. Per the approved PERM, the job offer requires that you 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, it should be sure to include a copy of your master's degree the next time around.
Submitting new evidence isn't enough by itself: The 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, to make it easy for the USCIS officer to review the petition.
Here are some areas to pay particular attention to when filling out Form I-140 a second time: If the I-140 petition is based upon an approved PERM, then on page 3 of the I-140 form you will need to carefully answer questions 9 and 10, which address whether the filing includes an original approved PERM. Additionally, you will have to answer YES to question 8 on page 3 (which asks, "Has any immigrant visa petition ever been filed by or on behalf of this person?") and provide the receipt number for the previous I-140 petition.
If USCIS denies the I-140 petition, 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 you choose to appeal the denial, you must complete and file Form I-290B. You must file the I-290B within 30 calendar days (which include weekends) from the date you received the denial (33 days if the decision arrived by mail).
Include additional evidence with the appeal if you feel that this documentation strengthens your case.
Be sure to mail the I-290B to the correct address, or USCIS will reject it. Additionally, you must include the appropriate filing fee, or the appeal will be rejected. You 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-2019), however, it's taking about 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 government that it made a mistake, simply reapplying is often easier.
If you are living in the U.S. now on a nonimmigrant visa, the mere fact that USCIS denied your I-140 petition does not automatically terminate your nonimmigrant status. For example, let's say you are in the U.S. in H-1B status, and your status is valid through February 15, 2021. USCIS denies your I-140 petition on June 1, 2019. You remain in valid H-1B status, notwithstanding the denial of your I-140 petition.
As noted above concerning concurrent I-140 and I-485 filing, however, it's still a good idea to talk with an immigration lawyer about the I-140 denial and your planning options.