I-140 & EB1 Employment-Based Visa Lawyer, Boston MA

Visa Categories

Employment based immigrant visas are divided into five preference categories. 

• Employment First Preference (E1): Priority Worker and Persons of Extraordinary Ability;
• Employment Second Preference (E2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability;
• Employment Third Preference (E3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers);
• Employment Fourth Preference (E4): Certain Special Immigrants; and
• Employment Fifth Preference (E5): Immigrant Investors.

There are many subgroups within each preference category.

I-140 Petitions

Filing an I-140 petition with the U.S. Citizenship and Immigration Services is a necessary step in obtaining an employment-based immigrant visa.

I-140 petitions must be filed within one hundred eighty days of the Department of Labor issuing a labor certification (if required).

United States employers must file the I-140 petition on behalf of the following categories of foreign workers:

• Employment First Preference (E1-B): Outstanding Professor or Researcher;
• Employment First Preference (E1-C): Multinational Executive or Manager;
• Employment Second Preference (E2): Professional Holding Advanced Degree; and
• Employment Third Preference (E3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers).

Individuals may self-petition an I-140 petition in the following employment-based preference categories:

• Employment First Preference (E1-A): Alien of Extraordinary Ability; and
• Employment Second Preference (E2): Professional Holding Advanced Degree (National Interest Waiver).

I-140 petitions require information about the sponsored worker’s dependent spouse and children. This information assists in visa processing and helps U.S. Citizenship and Immigration Services better determine the demand for employment-based immigrant visas at the time of filing Form I-140.

A dependent’s intention to apply for either adjustment of status (in the United States) or an immigrant visa abroad in Part 7 of the I-140 petition is not binding but should reflect the dependent’s intent at the time the I-140 petition is filed.

National Interest Waivers

National Interest Waivers permit foreign workers to self-petition for second preference employment-based immigrant visas without first obtaining a job offer or a labor certification (“PERM”).

The Attorney General may waive the job offer requirement, as well as the labor certification, if it deems it to be in the national interest to do so. 

National interest waivers are not available in the EB-1 or EB-3 categories.

Like all EB-2 workers, a person seeking a national interest waiver must first qualify as either an advanced-degree professional or an alien of exceptional ability.

“Advanced degree” means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

“Exceptional ability” in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Eligibility criteria for national interest waivers changed in 2016.

According to Matter of Dhanasar, the criteria for a national interest waiver is now:

1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. That foreign national is well-positioned to advance the proposed endeavor; and
3. It would be beneficial to the U.S. to waive the job offer and labor certification requirements.

To learn more about what qualifies as “substantial merit and national importance,” as well as what factors the U.S. Citizenship and Immigration Services considers in determining whether a foreign national is “well-positioned to advance the proposed endeavor,” contact our office directly.

Priority Dates

Priority dates are used to determine an immigrant’s place in the visa queue. When the priority date becomes available, or is “current,” immigrants may be able to apply for adjustment of status and obtain lawful permanent resident status, if otherwise eligible.

An immigrant visa is available to an immigrant when their priority date is earlier than the cut-off date shown for their preference category and country of chargeability in the applicable chart in the Visa Bulletin.

Preference categories are explained above. Country of chargeability is generally the foreign national’s country of birth.

Priority dates for employment-based immigrants is either:

• The date the labor certification (“PERM”) is accepted for processing by the Department of Labor;
• USCIS accepts Form I-140 for processing;
• USCIS accepts Form I-360 for processing; or
• USCIS accepts Form I-526 for processing.

Visa Bulletin

The Visa Bulletin allows immigrants to check their place in the immigrant visa queue. How long immigrants must wait to apply for adjustment of status (or begin consular processing) depends on their priority date, preference category, and the country to which the visa will be charged.

Application Process

United States employer or individual files Form I-140, Immigrant Petition for Alien Worker, with supporting documents to the U.S. Citizenship and Immigration Services.

Electronic Filing

Electronic filing is not available for I-140 petitions.

Costs

The fee to file an I-140 petition is $700. Premium processing may be available for an additional $1,440.

USCIS filing fees are not refundable, regardless of any action U.S. Citizenship and Immigration Services takes on the application.

Checks should be made payable to the “U.S. Department of Homeland Security.”

Processing Time

How long immigrants must wait for an immigrant visa depends on their priority date, preference category, and the country to which the visa will be charged.

Visa retrogression may further impact processing times.

Visa retrogression occurs when more people apply for an immigrant visa in a particular category than there are immigrant visas available for that month. In these circumstances, the cut-off date on the Visa Bulletin moves backward to an earlier date.

Portability

EB-1, EB-2, and EB-3 petitions are entitled to the earliest priority date when a subsequent EB-1, EB-2, or EB-3 petition is submitted unless the prior I-140 petition is revoked due to:

• Fraud or willful misrepresentation of a material fact;
• Revocation of the labor certification (“PERM”);
• Invalidation of the PERM by the Department of State or USCIS; or
• A determination that there was a material error.

Individuals who have an employment-based green card application pending with the U.S. Citizenship and Immigration Services for more than one hundred eighty (180) days may request to change the job or employer on which their I-140 petition is based.​

Portability provision do not apply if the I-140 petition is withdrawn before one hundred eighty (180) days or U.S. Citizenship and Immigration Services denies or revokes the I-140 approval.

Porting employment from one employer to another requires that the adjustment applicant demonstrate that the new employment is in the “same or similar” occupational classification as the proffered position.

Portability requests may be approved even if there has been career progression and/or an advance in wages. 

Self-Employment

Porting to self-employment is an option for individuals who have had an employment-based green card application pending with the U.S. Citizenship and Immigration Services for more than one hundred eighty days.

In processing a request to port to self-employment, the USCIS will consider whether:

• The employment is in a “same or similar” occupational classification;
• The new employer and job offer are legitimate;
• The I-140 represented a true employment opportunity (“bona fide job offer”); and
• The intent of the beneficiary when the labor certification (“PERM”) was filed.

Portability provision do not apply if the I-140 petition is withdrawn before one hundred eighty (180) days or U.S. Citizenship and Immigration Services denies or revokes the I-140 approval.

Request for Evidence

Requests for Evidence are written notices issued by U.S. Citizenship and Immigration Services to request missing initial evidence or additional evidence from applicants or petitioners.

I-140 Requests for Evidence commonly include the following topics:

• Alien’s educational qualifications;
• Alien’s work experience;
• Employer’s ability to pay the proffered wage;
• Alien’s intent to work at the place of intended employment;
• Existence of an employer/employee relationship; and
• Whether a bona fide job offer exists.

Ability to Pay RFE

ln recent years, the U.S. Citizenship and Immigration Services has started issuing “ability to pay all I-140 beneficiary” RFEs. In these situations, the petitioner must submit documentary evidence to demonstrate its ability to pay the combined proffered wages of every Form I-140 petition that was pending, approved, or filed from the date requested by U.S. Citizenship and Immigration Services up until each of the beneficiaries obtain lawful permanent residence.

Required initial evidence includes copies of:

1. Annual reports;
2. Federal tax returns; or
3. Audited financial statements.

An I-140 petitioner must establish its ability to pay the beneficiary the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 

Employment of Beneficiary

In determining a petitioner’s ability to pay the proffered wage, U.S. Citizenship and Immigration Services first examines whether the petitioner employed and paid the beneficiary at a salary equal to or greater than the proffered wage at the time the priority date was established.

If the petitioner employed and paid the beneficiary at a salary equal to or greater than the proffered wage at the time the priority date was established, the U.S. Citizenship and Immigration Services should make a positive determination on the petitioner’s ability to pay.​

If a petitioner does not establish that it paid the beneficiary at a salary equal to or greater than the proffered wage from the priority date onward, U.S. Citizenship and Immigration Services will then examine the petitioner’s net income and net current assets. 

Net Income and Net Current Assets

lf the petitioner’s net income or net current assets equals or exceeds the proffered wage, or the difference between the proffered wage and the amount the petitioner paid to the beneficiary in a given year, the U.S. Citizenship and Immigration Services should make a positive determination on the petitioner’s ability to pay. 

Ability to Pay All I-140 Beneficiaries

ln recent years, the U.S. Citizenship and Immigration Services has started issuing “ability to pay all I-140 beneficiary” RFEs. In these situations, the petitioner must submit documentary evidence to demonstrate its ability to pay the combined proffered wages of every Form 1-140 petition that was pending, approved, or filed from the date requested by U.S. Citizenship and Immigration Services up until each of the beneficiaries obtain lawful permanent residence. 

Lally Immigration Services, LLC has extensive experience preparing responses to ability to pay RFEs and advising employers on this issue. Contact us for further information.

Notice of Intent to Deny/Revoke

U.S. Citizenship and Immigration Services may reject or deny employment-based immigrant visa petitions for failure to submit requested evidence or supporting documents. All required evidence should be submitted with the initial petition.