If a worker is in nonimmigrant status (like H-1B), here's when to petition for employment-based permanent residence.
Form I-140 Immigrant Petition for Alien Worker is the name of the document filed with U.S. Citizenship and Immigration Services (USCIS) in order to petition for employment-based permanent residence (that is, to get an employment-based green card).
Knowing when to file the I-140 petition is important, particularly if the employee is already in the United States, most likely in a nonimmigrant status (such as H-1B), which authorizes work. If that's your current situation, in order to avoid a gap in employment or the risk of having to return to your home country for the sake of your immigration status, you should become familiar with these timing issues early on.
The primary factors to consider in timing filing of the I-140 petition are preparation and USCIS processing times. The coronavirus pandemic has also introduced delays. Even if (as is likely) an employer will ultimately be filing the I-140 for you, you will need to help with the preparatory work.
Timing the Preparation of USCIS Form I-140
How long it takes to prepare the I-140 petition will depend on what green-card category you are being petitioned under.
If your I-140 petition is based on the Alien of Extraordinary Ability, Outstanding Researcher or Professor, or National Interest Waiver category, most of your time will be dedicated to collecting documents to satisfy the U.S. government's evidentiary requirements.
The evidence for all three categories (as outlined in the Immigration and Nationality Act) is largely based on professional and academic accomplishments. You will probably have a lot of these documents in your files already, but a successful case should include several support letters drafted by experts in your field. Collecting these letters will take the most time, as many qualified experts have busy schedules.
Once you have all of the evidence in hand, it's a good idea to have a cover letter drafted (probably by an attorney the employer hired), which explains how and why you satisfy the category you are being petitioned under. It's impossible to accurately predict how long all of this preparation will take, because no two cases are alike. A safe estimate is a few months.
If your I-140 petition is based on a category that requires a labor certification from the Department of Labor (DOL), the planned-for preparation time will need to factor this in. The labor certification process requires an employer to conduct a test of the labor market. Your position will be advertised according to regulatory guidelines, and your employer will have to wait an additional 30 days after completing recruitment to interview qualified candidates.
Upon finding no qualified U.S. candidates available for the position, your employer will submit an Application for Permanent Employment Certification with the DOL, which normally takes several months to process. In early 2022, many applications were taking six months or more. The prevailing wage step, which most employers complete before advertising the position, also is taking about six months as of early 2022.
Be aware that if your employer's application is the subject of a audit, the processing time could be delayed for up to between four and six months. Your employer will submit the I-140 petition only after the DOL certifies the Application for Permanent Employment Certification.
USCIS Processing Times of Form I-140
The length of time it takes USCIS to make decisions on I-140 petitions depend on what service center the petition is filed at and what category it's filed under. Check the USCIS website for current processing times when beginning the process.
Most I-140 categories are eligible for premium processing, which is requested using Form I-907. If your category is eligible for premium processing, the I-140 petition will be processed in 15 calendar days. An additional fee is required for this service. (But keep an eye on the USCIS website with regard to premium processing; it sometimes suspends this service.)
It is not uncommon for I-140 petitions to be delayed, by USCIS sending a request for evidence (RFE), asking for follow up documents or information. If an RFE is issued on your case, you will be given a deadline, typically 87 days, by which to respond. Your case should be decided upon within 60 to 90 days after submitting a response. If you used premium processing, you can expect a final decision within 15 calendar days of when USCIS receives your response.
Particular Timing Issues for People in H-1B Status
If you are in the United States as an H-1B worker, make sure your labor certification application or I-140 petition is filed at least one year before you reach the end of your six-year period in H-1B status.
Regulations allow extensions of H-1B status beyond the sixth year, depending on the status of your I-140 petition and whether or not an immigrant visa is currently available for you (given annual limits and possible waiting lists, based on "priority date"). If your I-140 petition is based on a labor certification, you will be eligible for a seventh-year extension of your H-1B status if the labor certification or I-140 petition has been pending for at least 365 days. If your I-140 petition is approved and an immigrant visa is not available, you will also be eligible for an extension beyond the six-year period.
The H-1B employer requesting the post-six-year extension of H-1B status does not need to be the same employer that submitted the labor certification application or I-140 petition. This can be especially helpful in the COVID-19 pandemic time of job furloughs, terminations, and other changes to employment.
If Your Priority Date Is Current
If your I-140 petition is based on a category that requires a labor certification and your priority date is current, you can speed up the green card application process by filing your I-485 concurrently with your I-140. Learn how this works.
Legal Help
Your employer will likely have an immigration lawyer handle the I-140 process on your behalf. An immigration attorney can be a valuable resource for you and your employer; the attorney can offer useful advice on the timing issues for your particular case and provide assistance in the preparation process to ensure a timely filing and successful outcome.
