— Key Takeaways

• Form I-140 is the immigrant petition filed by an employer (or self-petitioner) for an employment-based green card.
• Processing times vary by EB category: EB-1, EB-2, EB-3, and NIW each have different timelines.
• Premium processing is available for the I-140, guaranteeing an initial action within 15 business days for most categories.
• After approval, the I-140 establishes your priority date, which determines when you can file your I-485 or pursue consular processing.
• I-140 portability allows you to retain your priority date even if you change employers, under certain conditions.

For foreign nationals seeking employment-based green cards, the Form I-140, Immigrant Petition for Alien Workers, is a critical step in the process. Whether you are an exceptional researcher, a skilled professional, or a multinational executive, understanding the I-140 processing time—and the availability of premium processing—can help you plan your immigration timeline effectively.

This guide covers what the I-140 is, who files it, current processing time expectations for each employment-based category, premium processing availability and fees, and what happens after your I-140 is approved. We also discuss important topics like I-140 portability and priority date retention.

What Is Form I-140?

Form I-140, Immigrant Petition for Alien Workers, is the petition used by U.S. employers (and in some cases, self-petitioners) to sponsor a foreign national for an employment-based green card. The I-140 establishes that the beneficiary meets the qualifications for the requested employment-based category and that the employer has the ability to pay the offered wage (where applicable).

The I-140 is typically filed after the completion of the PERM labor certification process (for EB-2 and EB-3 categories that require it). For EB-1 categories and National Interest Waiver (NIW) petitions, no labor certification is required.

Who Files the I-140?

In most cases, the U.S. employer files the I-140 on behalf of the foreign national employee. However, there are exceptions:

• EB-1A (Extraordinary Ability): The foreign national may self-petition—no employer sponsor is required.
• EB-2 NIW (National Interest Waiver): The foreign national may self-petition, demonstrating that their work is in the national interest.
• EB-1B (Outstanding Researchers/Professors): The employer files on behalf of the researcher or professor.
• EB-1C (Multinational Managers/Executives): The U.S. employer files on behalf of the transferring manager or executive.
• EB-2 and EB-3 (with PERM): The employer files after obtaining an approved PERM labor certification.

I-140 Processing Times by Category

I-140 processing times vary depending on the employment-based category and the USCIS service center handling the petition. Below is a general overview. Always verify current times on the USCIS processing times tool.

EB Category	General Processing Range (Without Premium)
EB-1A (Extraordinary Ability)	Several months; varies by service center
EB-1B (Outstanding Researcher/Professor)	Several months; varies by service center
EB-1C (Multinational Manager/Executive)	Several months; varies by service center
EB-2 (with PERM)	Several months; varies by service center
EB-2 NIW (National Interest Waiver)	Often longer due to case complexity; may take a year or more
EB-3 (Skilled Workers, Professionals)	Several months; varies by service center

 

NIW petitions tend to take longer because they involve a more complex adjudication process. The petitioner must demonstrate that the proposed endeavor has substantial merit and national importance, and that the petitioner is well positioned to advance the endeavor.

Premium Processing: Availability, Fees, and Timeframes

Premium processing (Form I-907) is available for I-140 petitions across most employment-based categories. This service provides an expedited adjudication timeframe.

How Premium Processing Works

When you file Form I-907 alongside your I-140, USCIS guarantees an initial action on your case within a specified period. The initial action can be:

• An approval
• A denial
• A Request for Evidence (RFE)
• A Notice of Intent to Deny (NOID)

If USCIS issues an RFE or NOID, the premium processing clock resets after you submit your response.

Premium Processing Timeframes

For most I-140 categories, the premium processing timeframe is 15 business days. However, USCIS has introduced different timeframes for certain categories:

• EB-1 and EB-2 (with PERM): Typically 15 business days
• EB-2 NIW: May have a longer adjudication window (check USCIS for current timeframes)
• EB-3: Typically 15 business days

Premium Processing Fees

The premium processing fee for the I-140 varies. USCIS periodically adjusts this fee. As of the most recent fee schedule, the fee depends on the petitioner classification and employer size. Always check the current fee on the USCIS website before filing, as fees are subject to change. The fee is paid in addition to the standard I-140 filing fee.

How to Check Your I-140 Status

You can check the status of your I-140 petition through:

• USCIS Case Status Online: Enter your receipt number at uscis.gov/casestatus.
• USCIS Online Account: Your employer or their attorney may be able to track the case through their USCIS account.
• Your immigration attorney: If the petition was filed through an attorney, they can check the case status and provide updates.

Responding to a Request for Evidence (RFE)

If USCIS issues an RFE on your I-140, it means the adjudicating officer needs additional documentation or information before making a decision. Common reasons for I-140 RFEs include:

• Insufficient evidence of the beneficiary’s qualifications
• Questions about the employer’s ability to pay the offered wage
• Incomplete documentation of the beneficiary’s work experience or education
• For EB-1A or NIW cases, insufficient evidence of extraordinary ability or national interest

Responding thoroughly and on time is critical. A strong RFE response can mean the difference between approval and denial. Working with an experienced immigration attorney on your RFE response is strongly recommended.

What Happens After I-140 Approval

Once your I-140 is approved, the next steps depend on visa number availability:

• If a visa number is immediately available: You (or your attorney) can file Form I-485 to adjust status, or you can begin consular processing.
• If a visa number is not yet available: You must wait until your priority date becomes current on the Visa Bulletin before proceeding with the I-485 or consular processing.

The I-140 approval also establishes your priority date—the date your underlying petition (PERM application or I-140, depending on the category) was filed. This date determines your place in the visa queue.

I-140 Portability and Retaining Your Priority Date

One of the most important features of the I-140 is priority date portability. Under certain conditions, you can retain your priority date even if:

• Your employer withdraws the I-140 petition
• You change employers
• A new I-140 is filed by a different employer

Conditions for Retaining Your Priority Date

Generally, you can retain the priority date from an approved I-140 if:

• The I-140 was approved and was not revoked due to fraud or misrepresentation
• The I-140 was not revoked due to the invalidation of the underlying labor certification

This is a significant benefit for workers who change jobs during the green card process, as it allows them to keep their place in the visa queue rather than starting over.

Impact on I-485 Filing

The I-140 approval directly impacts when and whether you can file your Form I-485 (Adjustment of Status):

• For EB categories where a visa number is immediately available, you can file the I-485 shortly after I-140 approval (or concurrently in some cases).
• For EB categories with backlogs (particularly EB-2 and EB-3 for certain countries), you may need to wait years for your priority date to become current.
• Once your I-485 has been pending for 180 days, you may be eligible for job portability under INA Section 204(j).

Understanding the relationship between your I-140, the Visa Bulletin, and your I-485 eligibility is critical for effective immigration planning.

How Bay Legal, PC Can Help

Navigating the immigration process can be complex and stressful. At Bay Legal, PC, we provide personalized guidance to help you understand your options, prepare thorough applications, and respond to any issues that arise during processing. Our experienced immigration attorneys work closely with each client to develop the strongest possible case.

Contact us today to schedule a consultation:

• Phone: (650) 668-8000
• Email: intake@baylegal.com

 

Frequently Asked Questions

1. What is the I-140?

Form I-140, Immigrant Petition for Alien Workers, is the petition used to sponsor a foreign national for an employment-based green card. It is filed by the U.S. employer or, in certain categories like EB-1A and NIW, by the foreign national themselves.

2. How long does the I-140 take without premium processing?

Without premium processing, I-140 processing times can range from several months to over a year, depending on the category and service center. NIW petitions may take longer. Check uscis.gov for current processing times.

3. How much does I-140 premium processing cost?

The premium processing fee for the I-140 varies by petitioner type and is subject to change. Check the USCIS website for the most current fee. This fee is paid in addition to the standard I-140 filing fee.

4. Can I file I-140 and I-485 at the same time?

Yes, you can file I-140 and I-485 concurrently if a visa number is immediately available for your EB category and country of birth. This is determined by the current Visa Bulletin.

5. What happens if my employer withdraws the I-140?

If your employer withdraws the I-140, you may still retain the priority date from that petition for use with a future I-140 filed by a different employer, as long as the withdrawal was not due to fraud or misrepresentation.

6. Can I change jobs after my I-140 is approved?

Yes, but the timing matters. If your I-485 has been pending for 180 days or more, you may change jobs under the I-485 portability provision (INA Section 204(j)), as long as the new job is in the same or similar occupational classification.

7. What is the difference between EB-1, EB-2, and EB-3?

EB-1 is for individuals with extraordinary ability, outstanding researchers/professors, and multinational managers/executives. EB-2 is for professionals with advanced degrees or exceptional ability (including NIW). EB-3 is for skilled workers, professionals with bachelor’s degrees, and other workers.

8. Does premium processing guarantee approval?

No. Premium processing guarantees an initial action (approval, denial, RFE, or NOID) within the specified timeframe. It does not guarantee a favorable outcome.

9. What is a priority date?

Your priority date is the date your PERM labor certification was filed (for categories requiring PERM) or the date your I-140 was filed (for categories not requiring PERM). It determines your place in the visa number queue.

10. Can I self-petition for an I-140?

Yes, but only in certain categories. EB-1A (extraordinary ability) and EB-2 NIW (national interest waiver) allow self-petitioning without an employer sponsor.

Attorney Advertising. This article is for general informational purposes only and does not constitute legal advice. Each immigration case is unique, and results will depend on the specific facts of your situation. Past results do not guarantee future outcomes. For personalized legal guidance, contact Bay Legal, PC. Principal Office: Jayson Elliott, Esq., Bay Legal, PC, 667 Lytton Ave Suite 3, Palo Alto, CA 94301.