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56-487: Form I-140 is required for EB categories EB-1 , EB-2 , and EB-3 . For EB-4 and EB-5 , Forms I-360 and I-526 are used, respectively. These categories were introduced as part of the Immigration Act of 1990 . The following is a list of all of the reasons (also known as petition types) for filing Form I-140. The Form I-140 petition must be accompanied by what is termed "initial evidence". This evidence depends on

112-418: A U.S. company as an EB1 Multinational Executive or Manager immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship under the regulations ( visa EB1C ), the petitioner must show that

168-567: A decade in immigration policy—to achieve deeper, essential reforms that AC21 now makes all the more urgent. As this report illustrates, the fundamental and pervasive problems with the entire immigration system extend far beyond the need for temporary high-technology workers. By focusing narrowly on the H-1B issue and only tentatively dealing with other issues, this legislation neglects other fundamental problems." AC21 built upon ACWIA (passed in 1998) but their areas of focus were somewhat different. While

224-621: A green card, no matter how qualified they are. EB-1 applicants, unlike most EB-2 and EB-3 applicants, don't have to go through the " Permanent Labor Certification " process. If they are in status in the US (for example, working on an O-1 visa ) and are from a country for which EB-1 numbers are current, EB-1 applicants may concurrently file the I-140 immigrant petition and the I-485 application for adjustment of status (plus I-131 and I-765). Approval of

280-495: A predecessor's labor certification can be used. Additional evidence that must be provided includes the employer's financial data, proof of the employee's education and work experience, as well as evidence that the employer can pay the proffered wage to the employee. The alien can in addition self-petition in the cases of EB1-A Alien of Extraordinary Ability or EB-2 National Interest Waiver. The form must be signed to be valid. Form I-907, Request for Premium Processing Service,

336-400: A time of the H-1B status for people with long-pending Form I-140 petitions (pending for at least 365 days). Here, "pending" includes an appeal that is pending. It also allows people with Form I-485 petitions that have been pending for more than 180 days to switch jobs without invalidating the underlying Form I-140 and labor certification. However, there is an ambiguity in cases where an extension

392-565: Is "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor". The applicant must produce evidence which satisfies at least three of the 10 criteria listed in the regulation. If the USCIS approves the I-140 petition the applicant will be granted adjustment of status, assuming no ineligibilities such as disqualifying criminal convictions. American Competitiveness in

448-474: Is already in the United States). The following are worth noting: It is possible to reapply for a Form I-140 petition if the original petition results in denial or revocation. When reapplying, all previously submitted evidence must be resubmitted, and filing fee must be paid again. In addition, the receipt number from the previous I-140 petition must be given. If there is additional evidence available to

504-410: Is no visa number availability wait time, either because the category is uncapped or the caps are nowhere near being met, then Premium Processing is advantageous. On the other hand, for a visa category with a country of chargeability where the current cutoff date is far in the past (i.e. there is a long queue), Premium Processing would not expedite the overall process because the cutoff date overwhelms even

560-534: Is obtained but subsequently the Form I-140 petition is denied. Under one of the provisions of the LIFE Act , the USCIS would overlook unlawful entry and unlawful presence when considering some Adjustment of Status applications for people whose Form I-140 had been filed by April 30, 2001 (with a number of additional caveats). The approval rate for aliens of extraordinary ability has ranged from 47% to 62% during

616-448: Is on average about four months. There are separate processing times reported for the appeals processing. As of February 1, 2016, the processing times for administrative appeals for all categories of Form I-140 is 6 months or less. The initial response from the USCIS to a Form I-140 is one of these four: In the case of a RFE or NOID, the petitioner's response will be taken into account by the USCIS when deciding whether to approve or deny

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672-486: Is only available for this form and for Form I-129 (non-immigrant worker). The Premium Processing Service promises an initial review from the USCIS within 15 calendar days of receipt of the form, after which time it may approve, deny, or issue a Request For Evidence or Notice of Intent to Deny . USCIS will refund the Premium Processing Service fee if processing takes longer than 15 days. If the fee

728-399: Is refunded, the relating case will continue to receive expedited processing. The time begins from the receipt of Form I-907 and the associated fee. The Premium Processing Service was introduced in 2001 for Form I-129 and extended to Form I-140 in 2006. Premium Processing does not guarantee a final adjudication; it only provides a time limit for initial review of the petition. In other words,

784-602: Is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties performed by the alien. In 2016 and 2017, heavy demand for EB1C-India green card has led to retrogression of EB1-India and EB1-China green cards which means that Indian and Chinese scientists have to wait for an additional time in order to receive

840-485: Is required if the petitioner is requesting Premium Processing. Form I-140 may be filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status. Form I-140 can be filed by paper or electronically. If the form is filed electronically, it will be sent to an appropriate service center. The filing address for Form I-140 depends on whether Form I-140 is being filed on its own or concurrently with Form I-485. The filing address can also differ by

896-400: Is the employment-based first preference immigration. The EB-1B petition consists of Form I-140 and supporting documents to show that the alien beneficiary meets EB1 Outstanding Researcher or Professor criteria. The U.S. employer intending to employ a professor or researcher who is outstanding in an academic field may file a Form I-140 petition in such classification. Employer should file it for

952-477: The H-1B Visa Reform Act of 2004 . Prior to AC21, if an individual filed a H-1B petition for a new job while already on a H-1B, the new petition was counted towards the annual cap. Now those who had already been counted towards a cap in the last six years were not counted towards the cap, and a person filing multiple petitions was counted towards the cap only once. One effect of this was to reduce

1008-535: The 10 listed criteria below to prove extraordinary ability in the field: The major advantages of applying for aliens of extraordinary ability include: no labor certification is required for this EB-1 category; no job offer or permanent job position is required for aliens of extraordinary ability; and much faster to obtain a Green Card than the EB-3 or EB-2 immigration categories. The EB1 Outstanding Researcher or Professor immigrant visa classification (EB1B, EB-1B, EB1-OR)

1064-417: The 15 calendar day guarantee is only for the initial review of the petition, which may result in approval, denial, or the issuing of a Request For Evidence or Notice of Intent to Deny. For immigrant visa allocation, the Form I-140 petition must be approved and the priority date assigned to that petition must be before the cutoff date (which depends on the country of chargeability and the visa category). Since

1120-533: The 21st Century Act The American Competitiveness in the 21st Century Act ( AC21 ) was an act passed by the government of the United States in October 2000, pertaining to immigration to the United States . It was a complement to the American Competitiveness and Workforce Improvement Act that had been passed in 1998. The focus of AC21 was to change rules related to portability and caps for

1176-505: The AAO itself. The AAO is the final point of appeal within USCIS. Beyond this, the decision can be appealed within the federal judicial system. An example of an appeal was the case of Kazarian v. USCIS (2010). The filing of Form I-140 is one step of the overall process to become a lawful permanent resident . The entire process typically takes several years. Of the USCIS immigration forms ,

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1232-693: The Act was passed by the United States Senate on January 24, 2000. Amendments were reported on February 9 and April 11 of the same year. The bill became law upon being signed by Bill Clinton , the President of the United States at the time, on October 17, 2000. The USCIS has issued memoranda and guidance regarding provisions in AC21 that have helped clarify the provisions and how these will be enforced, in 2001, 2003, 2005, and 2008. In summary,

1288-552: The H-1B cap. An earlier version of AC21 had included all recipients of graduate degrees as eligible for uncapped H-1Bs, but the provision was removed from the final bill. The section also specified that people whose current H-1B is on an uncapped visa will be counted toward the cap if they switch to a job that is subject to a cap (any job other than at a higher educational institution. nonprofit research organization, or government research organization). The special rules for universities and research facilities were further expanded with

1344-508: The H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the INS would soon be restructured and the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services . A first version of

1400-460: The I-131 and I-765 grants the applicant a temporary employment authorization document and advance parole travel permission for the period during which the petition and application are being adjudicated. Within this category, aliens with extraordinary ability (EB-1 section A) don't have to demonstrate that they have an employer in the US; they only have to demonstrate that they will keep working in

1456-554: The INS to process applications (set as 180 days) and defined "backlog" as the number of applications that were waiting for more than that time. It also set requirements for INS to report to the United States Congress. Although this did not have any direct or immediate effect, the INS did over time start providing more guidance regarding processing times. In 2001, the Premium Processing Service

1512-440: The US". It allows them to remain permanently in the US. Therefore, applicants who can demonstrate their extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim are not required to have a permanent offer of employment in the US and are eligible to self-petition, however, they must intend to work in the US in their field of expertise. The chart below shows

1568-673: The United States. The paper considered the Immigration Act of 1990 , the American Competitiveness and Workforce Improvement Act of 1998, and AC21. Lin's work was cited in Bloomberg by Charles Kenny. A paper by the Research and Policy Committee of the Committee for Economic Development said of AC21: "CED accepts that AC21 is a necessary response to the exploding demand for high-technology workers. But Congress missed an extraordinary opportunity—one which typically arises no more than once

1624-549: The adjudicating officers are applying a two-part adjudication approach—after determining whether the individual has met at least three regulatory criteria, the adjudicator must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. EB1A green card application has clear advantages for scholars, researchers, post doctoral research fellows, Ph.D. students, and other advanced degree professionals. An alien applicant must meet 3 out of

1680-505: The alien employee plans to take. In cases where a labor certification is required, the petition is said to be labor certification-based. In labor certification-based petitions, a Permanent Labor Certification must be filed and approved by the US Department of Labor before Form I-140 can be submitted. It is possible to establish a successor-in-interest relationship between the successor employer and predecessor employer, in which case

1736-478: The alien employee. For an EB1-OR petition, the petitioner should include documentation demonstrating the alien's outstanding ability, and should also include a permanent job offer letter, as well as evidence of three years teaching or research experience. The petitioner must include documentation of at least two of the six criteria listed below, and an offer of employment from the U.S. employer: When an employer wishes to transfer an alien employee working abroad to

Form I-140 - Misplaced Pages Continue

1792-406: The beneficiary's visa application based on the petition encounters evidence suggesting that the petition was fraudulent. If the consular office finds such evidence, he or she returns the petition to USCIS along with the reasons the petition appears fraudulent, and issues a Section 221(g) quasi-refusal to the applicant (note that this is relevant to cases 2 and 3, and not to case 1 where the beneficiary

1848-450: The cutoff date and the processing time for Form I-140 petitions are independent, the wait time for Form I-140 to be processed is the later of the visa number availability time (the cutoff date) and the Form I-140 processing time. Therefore, Premium Processing can expedite the overall process of obtaining lawful permanent resident status when the Form I-140 processing time is longer than the visa number availability time. In other words, if there

1904-493: The denial (15 days in case of revocation) for processing by the USCIS Administrative Appeals Office (AAO). Note that although the form submitted is the same for appeals or motions, the way the form is filled makes clear whether the form is being used for an appeal or motion. In case of an appeal it is not necessary to submit new evidence, since the claim is that the original denial or revocation

1960-522: The employment-based immigration categories, corresponding to USCIS Form I-129 and Form I-140 respectively), the primary focus of the LIFE Act was family-based immigration (the IR and F categories, corresponding to USCIS Form I-130 ). However, both addressed a similar set of problems: a huge backlog, both in terms of the processing times for applications, and in terms of the availability of visa numbers due to

2016-414: The field in which they have the extraordinary abilities. Most of the other EB-1 applicants (for example, multinational executives or managers and outstanding professors or researchers) have to have an employer in the US to sponsor their applications. Obtaining lawful permanent residence as an alien of extraordinary ability is a difficult task. In 8 CFR § 204.5(h)(2), the definition of extraordinary ability

2072-462: The following are most closely related to Form I-140: EB-1 visa The EB-1 visa (or, colloquially, "Einstein visa") is a preference category for United States employment-based permanent residency . It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to

2128-446: The foreign employer and the U.S. employer are the same employer, or related as a parent/subsidiary or as affiliates. Managerial functions can also include management of an essential function of the organization, the beneficiary does not necessarily have a large number of direct reports. A United States employer may file a petition on Form I-140 for classification of an alien as a multinational executive or manager. No Labor Certification

2184-436: The main purpose of ACWIA was to crack down on perceived fraud and misuse of the H-1B status, the main goal of AC21 was to make it easier to hire skilled workers in the United States. The Legal Immigration Family Equity Act was passed on December 21, 2000, shortly after the passage of AC21, by the same Congress. While AC21 focused on the problem of skilled workers (both non-immigrant workers in H-1B status and immigrant workers in

2240-537: The numbers of EB-1, EB-2, and EB-3 visas issued at U.S. Foreign Service posts in fiscal years 2014 through 2018, according to the U.S. State Department: The visa is granted to three types of people: EB1 Extraordinary Ability green card application is in the employment-based immigration visa first preference (EB1) category known as EB1A or EB1EA. Among all three categories under EB-1, only EB-1A allows self petition—meaning, an individual can petition an EB-1A case for himself/herself without any U.S. employer to act as

2296-469: The paucity of official USCIS guidance regarding the implementation of the law, while reviewing statements and memoranda by USCIS officials to understand its implications. A draft memo circulated by USCIS in May 2005 was praised by Immigration Daily as extremely reasonable. A paper by Carl Lin in 2011 reviewed the effect of immigration policy changes for high-skilled immigration on employers and shareholders in

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2352-463: The petition is approved if the petition is filed before the end of the previous work authorization period. Work authorization ceases as soon as the petition is denied. The person can continue working in the new job for up to 240 days while the petition is being adjudicated. Some other less significant sections are discussed below: Title II of the Act, titled "Immigration Services and Infrastructure Improvements", provided guidelines on expected times for

2408-438: The petition. Based on new evidence suggesting that the original petition was fraudulent, the USCIS may issue a revocation of petition (i.e., revoke the petition entirely) or send the petitioner a Notice of Intent to Revoke , to which the petitioner may respond with additional evidence or challenge the reasons. The typical impetus for the USCIS to reconsider an approved petition is when a United States consular officer evaluating

2464-405: The petitioner that could lead to the original petition being approvable, it is possible to file a motion to reopen or reconsider the petition. For this, Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of the denial (15 days in case of revocation). Third, it is possible to appeal the decision, in which case Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of

2520-423: The pressure on the numerical cap, making it easier for those changing jobs but also reducing the competition for first-time cap-subject applicants. Another effect, particularly in future years when the cap would get filled in the first week of April (six months before the start of the fiscal year on October 1), was that people could switch jobs between employers without having to wait for the right time of year to make

2576-508: The provisions of AC21 did the following: At the time that AC21 was passed, there was a huge backlog in H-1B visa applications. The act sought to increase to 195,000 the caps for fiscal years 2001 to 2003 and retroactively raise the caps for 1999 (to include all cases approved after the cap was raised and before October 1, 2000) and for 2000 (to include all cases filed after the cap was reached and before September 1, 2000). This temporary increase

2632-402: The six-year limit of stay and with pending or approved I-140s but waiting for their Priority Date to become current, were allowed to extend their H-1B status in three-year increments until decisions were made on their adjustment of status applications. A person already working in the US on H-1B status would now be allowed to file a petition to work for a new employer and start working even before

2688-446: The sponsor/petitioner. However, EB-1A also has a very high standard of law. It requires the petitioner to show that the individual has either won some major award (Nobel Prize, for example) or met at least three out of ten regulatory criteria and show that the individual has "risen to the very top of the endeavor with national or international acclaim." After the precedent case, Kazarian v. USCIS (Two-Part Analysis for EB1-A Petition),

2744-482: The standard processing time. It is possible to apply for Premium Processing on an already-submitted application. In this case, the clock for Premium Processing begins when the Premium Processing is requested. Q 67 and Section 106 of the American Competitiveness in the 21st Century Act (AC21) includes special provisions in case of lengthy adjudications. In particular, it allows extensions by one year at

2800-413: The state the beneficiary will work in for Premium Processing. The fee for filing Form I-140 is $ 715, and must be payable in US currency to the US Department of Homeland Security. There is also a $ 2,800 fee for Premium Processing (next section). However, this fee does not include : The USCIS offers a Premium Processing Service at an additional fee of $ 2,800 for Form I-140 petitions. Premium Processing

2856-419: The transition, and without the six-month lead time that is de facto necessary for cap-subject applications. The employment-based immigrant categories ( EB-1 , EB-2 , and EB-3 ) have, in addition to an overall ceiling, per-country ceilings based on the country of chargeability . AC21 made unused slots from a given country available for use for the general category. Additionally, H-1B nonimmigrants reaching

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2912-405: The type of employee being sponsored, but for instance (in some cases) includes an award given to the employee or publication by the employee that certifies they are someone of extraordinary ability. In many cases (see table above), part of the initial evidence is a Permanent Labor Certification , which establishes, among other things, that there are insufficient workers in the US to fill the position

2968-441: The years 2005–2010. For outstanding professors or researchers, this has ranged from 90% to 95% during the same years. USCIS processes Form I-140 on a first-come, first-served basis, so at any given time, the date received for the forms that have just finished processing provides a good estimate of processing time. USCIS breaks down Form I-140 into eight categories and reports processing times separately for each: The processing time

3024-408: Was incorrect in light of the evidence available at the time. The AAO has a processing time goal of 6 months or less for appeals, but current processing times are not reported. Appeals have historically taken up to 35 months to be adjudicated; for this reason law resources often recommend reapplying. Finally, if the AAO returns an adverse decision, it is also possible to file a motion to reconsider with

3080-528: Was launched for Form I-129 , and this was subsequently extended to Form I-140 in 2006. In the 2010s, the United States Citizenship and Immigration Services (the descendant of INS that handles the processing of Forms I-129 and I-140) started defining processing time goals and publishing current USCIS processing times at its Service Centers and Field Offices. An article by Naomi Schorr and Stephen Yale-Loehr in 2003 reviewed AC21, noting

3136-564: Was not extended 2004 onward. However, the H-1B Visa Reform Act of 2004 made a more long-term but weaker increase in the number of H-1B slots: specifically, the first 20,000 applicants with master's degrees would be exempt from the cap of 65,000. This section introduced what has now become known as the "uncapped H-1B". Prior to AC21, all H-1B visas were counted towards the annual cap. Section 103 provided that employees of higher educational institutions, nonprofit research organizations, and government research organizations would not be counted toward

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