For many employment-based green card cases, a U.S. employer serves as the petitioner and sponsors a foreign national for permanent residence. Form I-140, Immigrant Petition for Alien Workers, is a critical part of that process.
At Delgado Rompf Bruen LLC, we work with employers and employees to develop employment-based permanent residence strategies, prepare I-140 petitions, and address the legal and evidentiary requirements that apply to the particular immigrant classification.
Employer sponsorship is required in many employment-based immigrant classifications, including most EB-2 and EB-3 cases. Certain EB-1 classifications, including outstanding professors and researchers and multinational executives and managers, also require a qualifying employer petitioner.
Other classifications permit an individual to file an I-140 petition without employer sponsorship. For example, individuals seeking EB-1 classification based on extraordinary ability may self-petition. Individuals who qualify for an EB-2 National Interest Waiver may also file on their own behalf because the National Interest Waiver waives the usual job-offer and labor-certification requirements.
Determining whether employer sponsorship is required, and which employment-based category best fits the position and the employee’s qualifications, is an important part of planning a permanent residence case.
Many employer-sponsored EB-2 and EB-3 cases require the employer to first complete the PERM labor certification process with the U.S. Department of Labor. PERM generally requires the employer to obtain a prevailing wage determination, complete specified recruitment, and file an application for permanent labor certification. If the Department of Labor certifies the application, the employer may then use that labor certification as the basis for the I-140 petition. An approved labor certification has a limited validity period. The employer generally must file the related I-140 petition with USCIS within 180 days of certification. Not every employer-sponsored I-140 requires PERM. The requirements depend on the immigrant classification being requested.
An I-140 petition asks USCIS to determine whether the employer and employee meet the requirements of the requested employment-based immigrant classification. Depending on the type of case, the petition may need to establish:
That the employer and offered position meet the requirements of the requested immigrant classification
That the employee possesses the education, training, experience, or other qualifications required for the position and immigration category
That any required labor certification supports the position and the employee’s qualifications
That the employer has the continuing ability to pay the offered wage
That any additional requirements of the specific EB-1, EB-2, or EB-3 classification have been satisfied
The evidence required depends significantly on the underlying classification and the facts of the case.
In I-140 cases requiring a job offer, USCIS generally requires the petitioning employer to demonstrate its ability to pay the offered wage. For cases based on PERM labor certification, the employer generally must establish the ability to pay the proffered wage from the priority date through the time the employee becomes a lawful permanent resident. Evidence may include federal tax returns, annual reports, audited financial statements, payroll records, or other documentation permitted by USCIS.
Ability-to-pay analysis can become more complicated when an employer is sponsoring multiple workers, has experienced fluctuations in income, operates through related business entities, or has undergone significant organizational changes. These issues should be evaluated as part of the I-140 strategy rather than addressed only after USCIS raises a question.
USCIS also examines whether the sponsored employee satisfied the applicable requirements by the date required for the particular case. In a PERM-based petition, this generally means demonstrating that the employee met the minimum education, training, and experience requirements stated on the labor certification as of the priority date. Employment verification letters, educational records, credential evaluations, licenses, and other evidence may be necessary depending on the position. Consistency between the labor certification, I-140 petition, employer records, and evidence of the employee’s qualifications is an important part of preparing the case.
Approval of an I-140 petition establishes the requested immigrant classification, but it does not by itself grant permanent resident status. The employee must also be eligible to complete the final stage of the green card process, and an immigrant visa must be available under the applicable employment-based preference category and priority date. An eligible individual completing the process in the United States may pursue adjustment of status. An individual completing the immigrant visa process abroad generally proceeds through consular processing. In some cases, an adjustment application may be filed concurrently with the I-140 petition when permitted by the applicable visa-availability rules.
Employment-based sponsorship requires coordination between the employer, the employee, and immigration counsel. Decisions made during the PERM process or in preparing an I-140 petition can affect later stages of the permanent residence process.
Delgado Rompf Bruen LLC advises employers throughout the process, including evaluating appropriate employment-based classifications, preparing PERM and I-140 filings, documenting the employee’s qualifications and the employer’s ability to pay, responding to requests for additional evidence, and planning for the final permanent residence stage.
Learn more about the overall employment-based permanent residency process, or contact our office to schedule a consultation.
I had an opportunity to meet Elizabeth, and I have personally seen what makes Elizabeth and her team great in the Immigration law space. I'd say they are the best in Chicagoland. Prompt & professional while carrying attention to all the details.
I had the pleasure of working with Marta Delgado for my immigration petition. From the moment I met with Marta, I felt confident she was the attorney I was looking for after many years of waiting. I was so nervous going into this process, but Marta walked me through the details more than once, giving me so much peace about it all. The process was seamless, and their turnaround time was QUICK! My whole case was started and closed within 10 months. I will always be grateful for their expertise and kindness along the way.
What a wonderful experience I had with Elizabeth and her team. Her professionalism made me feel at ease and comfortable throughout the process we went through. Thank you so much, Elizabeth!
I went through my Green Card and Citizenship applications with Elizabeth Rompf and every step of the way was fantastic. Incredibly professional, prompt, clear, and very attentive to details. I cannot recommend them enough! They're my absolute top pick for any immigration recommendations!
DRB helped us with securing a work visa for one of our staff members, communicated well, and helped explain the process.
I am full of gratitude while writing this review for Delgado Rompf Bruen Law. Thank you so much Marta for handling my case so beautifully. It has been only your diligence and professionalism in the work which guided my case to success. I am very fortunate to have you as an attorney. With other attorneys I've experienced ones who only took my money and promised to help me or never called me back. You're helping a lot of people with your honesty and great quality of work. I can't thank you enough. Yay, I am an American Citizen!
Elizabeth and her legal team were extremely helpful in my husband's green card case. They had us so prepared that the interview was a piece of cake. We didn't have a single issue. They were quick to reply to any questions we had and were very honest with us about any possible issues we could have. I would highly recommend her and her team.
I began working with Martha after a decade of having my immigration process handled by attorneys that worked for my employers and everything changed immediately. Martha was invested in my personal story and circumstances and took all the time I needed to talk me through the options and process. She was consistently professional, knowledgable, and compassionate. She even leveraged her network to get specific information about my interview site in the Bay Area which was invaluable the day of my naturalization interview. She's the BEST.
I've struggle for over 10 years to get my Permanent Resident status and have been represented by 4 immigration lawyers over that period. The last one I hired and who was able to resolve my immigration case is Elizabeth Rompf Bruen. The contrast of how she handled my case and the other 3 lawyers was obvious from the beginning. She was always available when I wanted to talk to her and provided the updates in my case as soon as she had one. I also noticed a different level of knowledge and expertise in comparison to the other 3 lawyers....
Marta was the most professional, accurate and caring lawyer I’ve encountered in the 6 years I’ve been living in the US, her work ethics are unmatched and without doubt was the best decision for my process. I recommend her to anyone that needs help, you will feel listened and she is incredible when it comes to explaining this procedures in a simple and straight forward manner. She will be my first option again when the time comes in the future.
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