Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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The I-140 Petition for Alien Worker

Q: How is the process of employment-based permanent residence begun with U.S. Citizenship and Immigration Services ("USCIS")?

A: From the immigration side, an immigrant petition - normally an I-140 Immigrant Petition for Alien Worker - must be filed by the sponsoring U.S. employer with U.S. Citizenship and Immigration Services to begin the process. This petition requests approval of an immigrant visa from USCIS in one of a number of available categories:

  • Alien of Extraordinary Ability (1st Preference)
  • Outstanding Professor or Researcher (1st Preference)
  • Multinational Executive or Manager (1st Preference)
  • Advanced Degree (2nd Preference - Labor Certification USUALLY a prerequisite)
  • Professional or Skilled Worker (3rd Preference - Labor Certification almost ALWAYS a prerequisite)
  • Special Immigrants (4th Preference - often a petition other than an I-140 must be filed)
  • Employment Creation, such as those who start, purchase or invest in a business employing US workers (5th Preference - a petition other than an I-140 must be filed)

The I-140 Petition requires documentation that the foreign national fits into one of the first three categories, and different categories require different types of documentation.

Q: Why are we talking about how the process starts with USCIS instead of just how the process begins?

A: Because USCIS isn't always where the process begins. Most 2nd Preference cases (Advanced Degree) and almost all all 3rd Preference cases (Professionals or Skilled Workers) require an approved Labor Certification from the U.S. Department of Labor prior to filing the case with USCIS - this can delay filing of the I-140 Petition anywhere from four months to a couple of years.

Q: What is the purpose of the I-140 Immigrant Visa Petition?

A: The purpose of the I-140 Immigrant Visa Petition is to request that U.S. Citizenship and Immigration Services allocate an immigrant visa for a specified individual in a specific preference category. It also formally establishes a priority date. See our FAQ on priority dates and preference classes for a more detailed explanation of what this means.

Q: How long does the I-140 process take?

A: This depends on where the I-140 Petition is filed and the basis for the case (Extraordinary Ability, Labor Certification-required 3rd-preference, etc.). This is not necessarily consistent among the USCIS Service Centers, but generally can be anywhere from five to eighteen months. Only certain types of I-140 filings are eligible for the accelerated Premium Processing service.

Please note that this timing guideline should be used solely for general information purposes. Bear in mind that situations may occur (such as USCIS staffing and procedural changes) which drastically change government processing times.

Following the filing of the petition, the petitioning company will receive correspondence confirming the filing date and case number.

Q: In which Preference Category will my case be filed?

A: The I-140 stage is the first time in the residence process that a petition is filed with U.S. Citizenship and Immigration Services. On the I-140 form, the employer indicates the category in which an immigrant visa is being requested on the foreign national’s behalf. This preference category will determine timing of eligibility to file the I-485 Application to Adjust Status to Permanent Residence, the final stage of the permanent residence process.

The preference category designation is not an arbitrary choice to be made for the purpose of expediting the residence process, but rather is carefully determined based upon an analysis of the factors involved in the case.

In other words, the academic and professional credentials of the foreign national, the nature and type of job and employer, the minimum education and experience requirements of the employer for the particular job, and possibly other factors determine the preference category requested at the time of filing the I-140 petition. To learn more about these issues, consult our FAQ on Priority Dates and Preference Classifications.

Q: What about my family?

A: The names, places of birth, and dates of birth are mentioned on the I-140 Immigrant Visa Petition, but only at the final stage is permanent residence formally requested for them.

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.