When to File for an Employment-Based Green Card: Timing an I-140 Petition

If a worker is in nonimmigrant status (like H-1B), here's when to petition for employment-based permanent residence.

By , Attorney · Capital University Law School

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 obtain an employment-based green card for a foreign national).

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) that 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 and discuss them with your employer.

The primary factors to consider in timing the filing of the I-140 petition are preparation and USCIS processing times. 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 U.S. 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.

The determination of prevailing wage step, which most employers complete before advertising the position, is taking about six months as of late 2023.

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 late 2023, many applications were taking 12 months or more.

Be aware that if your employer's application is the subject of an 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. The premium processing time for National Interest Waiver and multinational manager I-140 petitions is 45 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. And on February 26, 2024, it is scheduled to raise the already high premium processing fee.)

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 (or 45) calendar days of when USCIS receives your response.

Unique 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 firm or company that submitted the labor certification application or I-140 petition. This can be especially helpful in times of job furloughs, terminations, and other changes to employment.

If Your Priority Date Is Current

For most employment-based categories, if your priority date is current, you save an extra step by filing your I-485 concurrently with your I-140. This will not make your overall timeline any faster, because USCIS first must approve the I-140 petition before reviewing the I-485 application.

An important consideration before filing the I-140 and I-485 concurrently is the strength of the I-140 petition. If you file concurrently, and USCIS denies the I-140 petition, your I-485 application then will be denied automatically, because it was based upon the underlying I-140. You will have wasted both time and money. Therefore, you'll want to have a high level of confidence that your I-140 is approvable if you are planning to file the I-485 concurrently.

Professional Legal Help Can Aid Your Application

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.

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