Employment-based Permanent Residence (Part 2): USCIS Form I-140
When Employers’ PERM application (Please see “Employment-based Permanent Residence (Part 1)” for more information) is certified, then Employers can file Form I-140 petition with USCIS. The form provides information on both sponsoring employers and employees.
As the second part of the series of Employment-based Permanent Residence, this article provides information on filing the Form I-140 and possible issues in I-140 adjudication.
Process
Employers can choose to request premium processing when filing Form I-140. All types of PERM-based permanent residence petitions including EB-2 Advanced Degree, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Unskilled Workers (Other Workers) can be adjudicated through premium processing.
To request premium processing, the sponsoring employer needs to pay additional filing fee for the Form I-907 in the amount of $2,500. When filed as a premium processing case, it is guaranteed that the employer would hear from USCIS an update on the case within 15 calendar days.
The “update” could be an Approval, a Request for Evidence (“RFE”), or, rarely, a Denial. In case of RFE, the same amount of time for response as that for non-premium cases is granted, mostly 2 to 3 months.
When you provide your response to the RFE, USCIS will adjudicate your case within 15 calendar days from the receipt of the response.
One important date to watch when filing Form I-140 is the expiration date of the PERM validity period that is shown at the bottom of certified PERM. Form I-140 must be filed (i.e., received by USCIS) before the expiration of the PERM validity period. When timely filed, employers can refile the Form I-140 even after the PERM validity period expires, in case of denial.
Possible Issues
One of the most common questions from the employers is what is required on their end to sponsor someone. The answer is counter-intuitively simple: Your business has to be a real one and the job position you are offering should be genuine. The size of the business does not matter.
However, the business’s profit matters. Employers have to show they have “Ability to Pay” the offered wage for the potential employee they sponsor for permanent residency. To overcome this threshold, Employers need to show (1) (1) that their net profit on the Federal business income tax returns exceeds offered wage amount; or (2) that they are currently paying the amount in case whether they sponsor for their current employees under H-1B, F-1 OPT, or through Employment authorization document (EAD); or (3) that they they have sufficient assets to cover the wages.
On employees’ end, they need to prove they have qualifications required for the job position. The potential employees have to show they have education, experience, license and certification, skills and knowledge, and others required at the recruitment stage.
It is important to know that the employee’s experience with the current sponsoring employer does not count, unless the current position and proffered position differ more than 50 per cent. This becomes an issue when an employee does not have any prior employment and the sponsoring employer is their first employer. In such cases, it is recommended for the employers not to have any experience requirement.
The next article which would be the last part of the series will cover green card application through adjustment of status and consular processing.
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