Form I-140 guide: Immigrant Petition for Alien Worker

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Form I-140, officially the Immigrant Petition for Alien Worker, is often called the "employment-based immigrant petition" and is adjudicated by U.S. Citizenship and Immigration Services (USCIS). It is used for the three main employment-based categories: first preference (EB-1), second preference (EB-2, including the national interest waiver, NIW) and third preference (EB-3). Its job is to ask USCIS to confirm that the beneficiary meets the statutory requirements of the category sought and, for categories that require an employer, that the employer's job offer is genuine and that the employer is able to pay the wage.

In the overall employment-based process, the I-140 is the "middle step": in most EB-2 and EB-3 cases, the employer must first obtain a permanent labor certification (PERM) from the Department of Labor before filing the I-140; EB-1 and NIW cases don't need a labor certification and can start directly with the I-140. An approved I-140 does not by itself give you a green card or any status in the U.S.; what it establishes is your immigrant category and your priority date. After that you still have to wait for a visa number and then obtain the green card either through adjustment of status inside the U.S. (I-485) or an immigrant visa at a consulate abroad (DS-260).

At a glance

Who can, and who needs to, file an I-140

The categories covered by the I-140 and who files in each are as follows:

Situations to note:

• The beneficiary can be inside or outside the U.S. The I-140 itself doesn't require the beneficiary to be in the U.S.; after approval, the green card is completed through an I-485 inside the U.S. or at a consulate abroad.
• Categories that require an employer must involve a genuine, permanent job offer. We provide legal services only and do not provide employer resources or job matching; PERM and EB-3 cases must be sponsored by your own employer.
• Schedule A occupations (such as registered nurses and physical therapists, occupations the Department of Labor has pre-determined to be in shortage) don't require a PERM application to the Department of Labor first; instead, the employer files the uncertified labor certification form together with the I-140 directly with USCIS.
• EB-5 investors don't use the I-140; they use I-526E (regional center) or I-526 (direct investment). Special immigrants such as religious workers use I-360.
• The "Gold Card" program launched in late 2025 uses a different form, the I-140G, which is not the I-140 described here. The program is a recent policy, its rules may still change, and the latest requirements must be verified before filing.

Legal basis and eligibility by category

The legal basis for the I-140 is sections 203(b)(1)–(3) and 204 of the Immigration and Nationality Act (INA 203(b)(1)–(3)); the specific evidentiary standards are in the federal regulations at 8 CFR 204.5, and USCIS's adjudication guidance is in Volume 6, Part F of its Policy Manual.

EB-1A extraordinary ability (8 CFR 204.5(h))

You must show sustained national or international acclaim in your field, that you are one of the small percentage at the very top of that field, and that you will continue working in that field. On the evidence, you need either a major, internationally recognized award (at the level of a Nobel Prize, for example) or at least 3 of the 10 criteria listed in the regulations (such as significant awards, membership in associations that require outstanding achievement, media coverage, serving as a judge, original contributions of major significance, scholarly articles, exhibitions, a leading or critical role, a high salary, or commercial success). USCIS uses a "two-step review": first whether 3 criteria are met, then whether all of the evidence, taken together, demonstrates extraordinary ability. Meeting 3 criteria does not mean approval. EB-1A doesn't require an employer or a job offer; see the EB-1A guide.

EB-1B outstanding professors and researchers (8 CFR 204.5(i))

You must be internationally recognized in an academic field, have at least 3 years of teaching or research experience, and have an offer from a U.S. employer of a tenured or tenure-track teaching position or a comparable permanent research position. The evidence must meet at least 2 of the 6 criteria listed in the regulations. A private employer must employ at least 3 full-time researchers in the field and have documented accomplishments.

EB-1C multinational executives and managers (8 CFR 204.5(j))

Within the 3 years before filing (or within the 3 years before entering the U.S. in nonimmigrant status to work for the same employer), the beneficiary must have worked continuously for at least 1 year as an executive or manager for a related company (parent, branch, subsidiary or affiliate) outside the U.S.; the U.S. employer must have been doing business for at least 1 year, maintain a qualifying relationship with the foreign company, and employ the beneficiary in an executive or managerial capacity. See the EB-1C guide.

EB-2 advanced degree or exceptional ability (8 CFR 204.5(k))

An advanced degree means a U.S. master's degree or higher or a foreign equivalent, or a bachelor's degree plus 5 years of progressive work experience; exceptional ability requires meeting at least 3 of the 6 criteria listed in the regulations. Generally the employer must first obtain PERM.

EB-2 national interest waiver (NIW)

You must first meet the basic EB-2 requirements above, and then satisfy the three prongs of Matter of Dhanasar (2016): the proposed endeavor has substantial merit and national importance; you are well positioned to advance it; and, on balance, waiving the job offer and labor certification requirements would benefit the United States. In January 2025 USCIS updated the NIW guidance in its Policy Manual, adding more explanation about "national importance," recommendation letters, business plans and evidence for entrepreneurs, and stressing that general claims of economic benefit or job creation are not by themselves enough to show national importance. See the NIW guide and EB-1A vs. NIW.

EB-3 professionals, skilled workers and other workers (8 CFR 204.5(l))

A PERM obtained by the employer is required, and the beneficiary must already meet the education, experience and other requirements stated on the labor certification as of the priority date. "Other workers" are listed separately in the Visa Bulletin, and their dates may differ from those for professionals and skilled workers.

The employer's ability to pay (8 CFR 204.5(g)(2))

In categories that require a job offer from an employer, the employer must show a continuing ability to pay the wage stated on the labor certification or job offer from the priority date until the beneficiary obtains the green card. Common evidence is annual reports, federal tax returns or audited financial statements; an employer with 100 or more employees may submit a statement from a financial officer. In practice, wages actually paid to the beneficiary are also often used. When one employer files I-140s for several employees, ability to pay is considered in the aggregate.

Priority dates: how they're set and whether they can be retained

The priority date determines your place in the visa queue:

• Cases that require PERM: the priority date is the date the Department of Labor accepted the labor certification application for processing;
• Cases that don't require PERM (EB-1, NIW, Schedule A): the priority date is the date USCIS received a properly filed I-140.

Under 8 CFR 204.5(e), once an I-140 is approved, the priority date can generally be retained and used for another EB-1, EB-2 or EB-3 petition approved later (for example, if you first go through EB-3 and later get an EB-2 approved, you can use the earlier date). But if the I-140 is revoked for fraud or willful misrepresentation, because the labor certification was revoked or invalidated, or because USCIS determines the approval involved material error, the priority date cannot be retained. To see whether a date is "current," check the State Department's monthly Visa Bulletin; for how to read it, see How to read the U.S. Visa Bulletin.

AC21 rules related to the I-140 (settled points only)

The American Competitiveness in the Twenty-first Century Act (AC21) and related regulations that took effect in January 2017 give I-140 beneficiaries several protections. These rules have strict conditions; below is only the basic framework:

• After 180 days of approval, an employer withdrawal does not automatically revoke the I-140: under 8 CFR 205.1(a)(3)(iii)(C)–(D), if the I-140 has been approved for 180 days or more, or the related I-485 has been pending for 180 days or more, the employer's withdrawal of the petition or the termination of the employer's business does not automatically revoke the I-140. The I-140 can still be used to retain the priority date, support an H-1B extension and similar purposes (provided it has not been revoked for fraud, misrepresentation, an invalidated labor certification or material error). But this doesn't mean you can get a green card directly on that I-140; you usually still need a valid job offer or a new petition.
• Changing jobs after the I-485 has been pending 180 days (INA 204(j)): if the I-140 has been approved (or is later approved) and the I-485 has been pending for 180 days or more, you can move to a new job in the "same or similar occupational classification" without redoing PERM and the I-140; you usually file I-485 Supplement J when you change jobs. You can use the AC21 job change eligibility check for a preliminary assessment.
• H-1B extensions beyond 6 years: if the I-140 has been approved but you can't file the I-485 because of visa backlogs, the H-1B can be extended 3 years at a time; if a PERM or I-140 has been pending for 365 days or more without a final decision, the H-1B can be extended 1 year at a time (AC21 sections 104(c) and 106(a), 8 CFR 214.2(h)(13)(iii)(D)–(E)). Whether this applies depends on your individual circumstances; see the H-1B guide.
• "Compelling circumstances" EAD: under 8 CFR 204.5(p), people in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 whose priority date is not yet current may, in situations such as serious hardship, apply for a temporary work permit. The conditions are strict, and the effect on existing nonimmigrant status must be assessed before using it.

Filing tips (by main part of the form)

The notes below follow the general structure of the form and flag common problems; for specific item numbers, use the current USCIS edition.

1. Petitioner information (Part 1): in employer cases, enter the employer's name, federal employer identification number (FEIN) and address; in an EB-1A or NIW self-petition, the beneficiary fills this in as the petitioner, and an employer tax ID isn't required. Missing key information such as the petitioner's name or address can lead to rejection.
2. Petition type (Part 2): you can check only one category. Regular EB-2 and EB-2 NIW are separate options; checking the wrong one means the petition is reviewed under the wrong standard.
3. Beneficiary information (Part 3): spell names exactly as in the passport; if in the U.S., enter the most recent entry information and I-94 number.
4. Processing information (Part 4): choose whether, after approval, you will adjust status inside the U.S. or apply for an immigrant visa at a consulate abroad; if you choose a consulate, name the consulate city (for example, applicants in mainland China generally use Guangzhou). Changing the processing route later usually requires a separate step, such as notifying the consulate through I-824.
5. Additional employer information (Part 5): type of employer, date established, number of employees, gross annual income and net annual income. These figures should match the tax returns and financial statements; inconsistencies easily lead to RFEs.
6. Proposed employment (Part 6): job title, occupational classification (SOC) code, work location, wage, weekly hours, whether full-time, whether it's a new position, and so on, all of which must match the PERM. NIW self-petitioners describe the proposed endeavor as instructed in the form.
7. Spouse and children (Part 7): list all spouses and children, including those not immigrating with you.
8. Signature: the petitioner (an authorized person for the employer, or the self-petitioning beneficiary) must sign by hand; unsigned petitions are rejected.

Common mistakes: using an outdated edition of the form; job title, wage or work location inconsistent with the PERM; a checked category that doesn't match the evidence; omitting a spouse or children; mixing up the beneficiary's foreign and U.S. addresses.

Evidence and supporting documents

• PERM cases: the original DOL-certified labor certification (ETA-9089), or the certification document submitted as currently required;
• Proof of the employer's ability to pay: annual reports, federal tax returns or audited financial statements, plus the beneficiary's pay stubs and W-2s where needed;
• Proof of the beneficiary's education and experience: degree certificates, transcripts, a credential evaluation for foreign degrees, and experience letters from former employers (stating the position, duties, start and end dates, and whether full-time or part-time);
• EB-1A / EB-1B / NIW: evidence organized by the criteria claimed, such as awards, publications and citation records, media coverage, judging records, recommendation letters, business plans and so on;
• EB-1C: proof of the relationship between the U.S. and foreign companies, organizational charts, descriptions of the beneficiary's positions and duties abroad and in the U.S., and proof of business operations;
• The beneficiary's passport, visa and I-94 (if in the U.S.);
• G-28 if represented by an attorney.

Chinese-language documents (degree certificates, employment letters, company documents, media reports and so on) must be accompanied by a complete English translation and a translator's certification; see Translation and notarization requirements for immigration documents. Degrees from China usually also need a credential evaluation.

How to file and fees

The I-140 can be mailed on paper according to the official USCIS "Where to File" page (the address for a standalone filing may differ from the address when filed with an I-485), or filed through a USCIS online account; for scope, check the official page. In August 2026 USCIS issued a framework rule allowing it, after advance notice, to require online filing for specific forms; before filing, check the official page for any new requirements.

On fees, the amount may vary depending on who the petitioner is: since USCIS's new fee rule took effect in April 2024, in addition to the filing fee the I-140 carries an Asylum Program Fee, with different amounts for small employers and nonprofits. Premium processing is a separate I-907 fee, which was adjusted for inflation in March 2026. For exact amounts, rely on what USCIS currently publishes; see the USCIS fee schedule G-1055 and How to check U.S. immigration fees and processing times. Form editions are also updated; before filing, check the official page for the edition currently accepted.

What happens after filing

1. Receipt notice (I-797C): confirms acceptance; for categories that don't require PERM, the receipt date is the priority date.
2. Review: the I-140 itself usually doesn't require biometrics and generally has no interview (a concurrently filed I-485 has its own biometrics appointment).
3. Request for evidence (RFE) or notice of intent to deny (NOID): common issues are ability to pay, degree equivalency, the strength of EB-1/NIW evidence, and managerial duties in EB-1C cases; for how to respond, see What to do when you receive an RFE.
4. Decision: after approval you receive an approval notice (I-797). If you chose consular processing, the case is transferred to the State Department's National Visa Center (NVC); if you're in the U.S., you file the I-485 once your date is current, or the pending I-485 continues to be processed.

For processing times, check the USCIS processing times page; for checking case status, see How to check your USCIS case status and what each status means.

Filing concurrently with the I-485

If the beneficiary is in the U.S. and, at the time of filing, the priority date is current under the chart in use that month (each month USCIS announces whether it is using the "Dates for Filing" or "Final Action Dates" chart), the I-140 and I-485 can be filed together (concurrent filing). The advantages of concurrent filing are that you can apply earlier for a work permit and advance parole, and a spouse and unmarried children under 21 in the U.S. can file I-485s at the same time. Note: an approved I-140 does not by itself mean you can file an I-485; a visa number must be available. And if the I-140 is denied after concurrent filing, the I-485 will generally be denied as well. In addition, since September 2026 USCIS's public charge rules and the I-485 form edition have both changed; verify the latest requirements before filing concurrently. See the I-485 adjustment of status guide.

Common reasons for denial and options after a denial

• The employer can't show a continuing ability to pay from the priority date;
• As of the priority date, the beneficiary didn't yet meet the education or experience requirements of the labor certification, or a foreign degree isn't accepted as equivalent;
• An EB-1A petition meets 3 criteria but the final merits review doesn't show the beneficiary is at the top of the field;
• An NIW petition fails to explain the "national importance" of the endeavor, or the recommendation letters are vague and lack independent evidence;
• An EB-1C position is in reality mainly about performing day-to-day business tasks, with insufficient evidence of managerial duties;
• Procedural problems such as a form inconsistent with the PERM, or use of the wrong edition.

After a denial, depending on the circumstances, you can appeal to the Administrative Appeals Office (AAO) through I-290B within the deadline, or file a motion to reopen or reconsider with the office that made the decision; you can also strengthen the evidence and file a new I-140 (this is more common for categories that don't require PERM). When refiling a PERM case, also watch the validity period of the labor certification. Which approach is better depends on the reasons for denial.

How the I-140 differs from similar forms

Frequently asked questions

Official sources

• USCIS: Form I-140 official page (form, instructions, where to file)
• USCIS Policy Manual, Volume 6, Part F: Employment-based immigration
• USCIS: EB-1 first preference
• USCIS: EB-2 second preference (including NIW)
• USCIS: EB-3 third preference
• 8 CFR 204.5: Petitions for employment-based immigrants
• 8 CFR 205.1: Automatic revocation (including the 180-day rule)
• U.S. Department of State: Visa Bulletin
• USCIS fee schedule G-1055
• USCIS processing times

Related reading

• PERM labor certification guide
• NIW national interest waiver guide
• EB-1A extraordinary ability guide
• EB-1A vs. NIW: which one fits?
• AC21 job change eligibility check

This article is general information and is not legal advice. Laws and policies can change; rely on the latest official information and on an attorney's advice for your specific situation.