As we specialize in EB-1B, EB-1A and NIW petitions, this I-140 processing summary will most closely follow the procedure for those types of cases, but all I-140 petitions follow a similar procedure.
Initial Contact:
To begin a I-140 petition, one should contact an immigration attorney who specializes in employment based immigration pertaining to the category which you wish to pursue. An immigration attorney is an invaluable asset in preparing the I-140 petition as well as dealing with the intricate maze of immigration law and the bureaucratic nightmare that the USCIS can be. After choosing an immigration lawyer, and retaining them, the real work begins on the I-140 petition.
References / Evidence:
The first step is to contact leading experts in your field, and ask them if they would be willing to write for you letters of recommendation. These letters serve as powerful evidence to the USCIS to prove that your coming to the US and becoming a permanent resident is beneficial. The letters are prepared collaboratively between the client, the recommendation writers, and the attorney to assure that they address the necessary legal points, as well as being truthful and honestly assessed by the expert recommendation writer. Also during this period, the client will begin gathering all of the required evidence, which includes but is not limited to: proof of research, publication, citation, implementation of your research, patents, awards, memberships, grants, private funding, etc. Your immigration attorney will be able to give you a more specialized list based on the category in which yourr i-140 will be filed.
Drafting the Petition Letter / Preparing & Filing the Case:
Once the lawyer has received the finalized versions of the recommendation letters and a majority of the supporting evidence, they can begin writing the petition letter. The petition letter serves as a brief and overview of all submitted materials, carefully addressing the legal points and requirements which need to be met in order to qualify your I-140 for approval. The attorney will prepare a draft of the letter, and work with the client to assure accuracy of the facts, and may ask for further documentation in order to support points in the case that seem weak. Together, the attorney and the client will finalize the letter. During the period of the writing of the petition letter, the official forms will also be prepared, based on questionnaires sent to the client. These official forms need to be signed by the client and mailed to the attorney so they can be submitted along with the petition letter and evidence. All of the supporting documents and evidence are compiled into a packet and indexed so that the petition letter can readily refer to the evidence. When the evidence is compiled and indexed, the forms are completed, and the petition letter is finalized, the case is submitted to the USCIS.
After Filing: (see flowchart)
Once the case is received by USCIS, a receipt notice will be issued, generally within two weeks of filing. Then a period of waiting begins, during which the USCIS reviews and adjudicates your case based on the petition letter and evidence. Generally, there are three things that can happen once your case is filed: It can be approved, a Request for Evidence (RFE) can be issued, or it can be denied.
Approval:
In the case of approval, you are eligible to adjust your status to that of permanent resident through the submission of a form I-485 (which can be concurrently filed with a I-140, if you so choose). Once the I-485 is approved, your green card will be issued.
RFE:
In the case of a RFE, the attorney will work with the client to address the points raised in the RFE notice issued by the USCIS. Usually, there are specific issues which the USCIS requests more documents to support, but sometimes, USCIS issues form-like ‘boilerplate’ RFE’s which require the attorney and client to re-address all of the issues in the case and attempt to gather all possible evidence, as they are non-specific. A response letter is drafted, much like the petition letter to address the points raised. Additional supporting documentation is aggregated and indexed to accompany the RFE response letter. This new RFE packet including the response letter and new evidence is submitted to USCIS. Upon response to the RFE, there is another period of waiting where the USCIS reviews the new evidence and RFE response letter, and the case will either be approved or denied.
Denial:
If your case is denied by USCIS, your attorney will evaluate your case again to see if it is in your best interest to pursue further relief. After the initial denial, you have the option to make a motion to reopen (MTR), if there has been a misinterpretation of the facts of the case, or an appeal, if you feel that the law has been inaccurately applied to your case. Your attorney will advise you as to which is the best course of action, and you will be able to decide which method of relief you wish to pursue.
MTR:
If you decide to go ahead with a motion to reopen, which you have 30 days from receipt of denial to do, your attorney will draft a letter addressing the misinterpretation of facts in a case, and work together with the client to assure that the issues that led to the initial denial. Again there will be another period of waiting while USCIS address the case and reviews the evidence and MTR letter to ascertain if there was a misinterpretation of fact in the case, and that the denial was issued in error. The USCIS will issue a decision based on their evaluation of the evidence and either approve the case, or deny the case again.
Appeal:
If you decide to appeal your case, which you have 30 days from receipt of denial to do, your attorney will compose a appeal letter and ask you to prepare any new evidence that may have surfaced during the period between the initial filing and the present which may help to support the case. The appeal letter, along with the new indexed evidence is submitted to USCIS, which then will review the facts of the case in order to assure that their decision was not made in error. If USCIS decided that they were correct to deny your case, they then forward the case to the Administrative Appeals Office (AAO). There is a period of waiting as the AAO reviews the case and the appeal materials. Once the AAO has finished their review they will issue a new decision on the case, and either approve or dismiss the appeal.
MTR Denial / Appeal Dismissal:
In the case that your appeal was dismissed or your MTR was denied, there are still options to escalate. You generally have two options for relief should you reach this point: filing a MTR with the AAO, or suing USCIS under the Administrative Procedure Act. Your attorney will advise you in your best interest. A MTR to the AAO follows much the same procudure as a MTR to USCIS, and makes the argument via an Appelate MTR letter that the AAO misinterpreted the facts of the case and their denial was in error. Suing the USCIS for failure to correctly apply the law under the Administrative Procedure Act requires filing suit in district court and litigating your case before a judge. Filing suit against USCIS is a very complicated matter, and your attorney will be able to advise you in the intricacies of it should you reach this point.
Refiling your case:
It should be noted that at any stage, if you receive a denial, your attorney may advise you to start over from the beginning. Why? Because most evidence that surfaces after the initial filing date cannot be used to support your case. So if you invent a new device, or create a new computer program that makes hundreds of thousands of dollars, it is inadmissible as evidence because it does not help to prove your eligibility as of the date of filing. Should you receive a denial, but have had recent success since the initial filing, your attorney may advise you to refile to take advantage of this new success and evidence.
Overall, the process for filing an I-140 can be very complicated, but there is a visible road-map. An experienced immigration attorney, such as FYZ Law Group can help you to avoid pitfalls and navigate successfully to get your I-140 approved.
