I 140 RFE: How To Respond
An application for lawful permanent residence on the basis of employment can only proceed if USCIS has approved the I-140. If you have received an I 140 RFE for your employment-based Green Card, you will want to understand what this means for your petition.
An RFE is notification from USCIS that the adjudicating official does not consider they have sufficient information to make a decision on the application. It is not a refusal of the petition, but it gives clear indication that there is more work to do to convince the adjudicator that all eligibility criteria are satisfied.
RFEs can be issued both for I-140 petitions filed by the sponsoring employer or where the foreign worker is self-sponsoring and has themself filed the I-140.
Under current guidance, adjudicators have wide discretionary powers to deny an application without first having to issue an RFE or even a NOID. As such, it’s important to take full advantage of the opportunity to provide the requested information within the deadline.
Avoiding an I 140 denial
The RFE will identify the specific issues to be addressed in your case. Ensure you work closely to these, providing relevant and comprehensive evidence to resolve the concerns raised and potential objections to approving the petition.
Common areas for further information include inconsistencies in the information provided. The PERM and I 140 will be cross-checked. Any inconsistencies (can be as minor as a spelling mistake) will be scrunitized and may result in an RFE to seek clarification. It is better to triple check forms before submitting. If you spot an error on the PERM when filing the I 140, take advice on how this could impact your petition at this stage and how to bring any changes to USCIS’ attention.
The adjudicating officer will be looking to verify that the position is as described in the labor certification and that it qualifies under the visa requirements. The burden is on the petitioner to evidence the eligibility of the role and the worker in meeting the Green Card requirements.
For example, issues arise if the applicant’s education and qualifications are not evidenced sufficiently to show the required standard has been achieved. To be eligible under the EB-2 route, the position must require a Master’s degree, or the foreign equivalent, or a Bachelor’s degree, or the foreign equivalent, plus five years of progressive experience as a minimum for entry into the profession. The detail in both the labor certification and I 140 must comply with this. Qualification or experience anywhere below this will not be sufficient. The evidence must support that the worker attained this standard as at the date of filing of the labor certification.
Likewise, questions may be asked relating to the role itself, such as the salary level or designated working location. If the worker is intended to provide onsite consultancy-based support to clients, i.e. outside the principle worksite, USCIS may assert that the role does not meet the visa requirements. The employer must also give clear evidence of its ability to pay the proffered salary.
This is a complex and highly nuanced area. Take nothing for granted and make no assumptions about the adjudicator’s knowledge or understanding of the role or your qualifications. Take advice to ensure you are providing sufficient evidence that the role and worker comply with the rules.
Petition denied following an I 140 RFE
If you receive a denial following the RFE submission, an immediate concern will be the impact, if any, on your current immigration status.
If you are already in the US with valid non-immigrant status, a denied I-140 will not affect your status or visa validity. However, you may have been relying on the I-140 application to continue your lawful status after your current visa expiry.
The position becomes more complicated if your denied I-140 was supporting form I-485 to adjust your status to lawful permanent resident.
Take advice on your options and the timeframes involved to ensure you do not overstay, as this will be damaging to future US immigration applications.
Having received the denial, what are the options? Depending on the circumstances of your case, options could include appealing or potentially having to file a brand new application.
Appealing a denied I-140
If the application is denied, USCIS will provide details of how to appeal the decision to the Administrative Appeals Office (AAO) using form I-290B.
You will want to weigh up your options as to whether appealing is best for you. Appealing the decision will require you to evidence to the AAO that USCIS got it wrong. There is also the cost of the appeal and the timeframes involved – it can take around 6 months to hear the AAO’s decision on your appeal.
You will have to act quickly, as typically appeals must be made within 30 calendar days of the denial notice being received, or 33 if sent my mail).
Re-filing the I-140
If the I-140 is refused, you as the petitioning employer or the foreign worker may consider reapplying by filing a new I-140. You will also have to pay the USCIS filing fee again.
If you opt for this course of action, ensure that the new application specifically addresses all of the grounds for refusal identified by USCIS in the initial application. Compile and include extensive, relevant evidence to support your application. Remember to include all of the documentation from the original application as well – this will processes as a new and different petition, and must be comprehensive and complete.
In the new form, you will also have to answer YES to the question, “Has any immigrant visa petition ever been filed by or on behalf of this person?”.
Before filing, a useful exercise is to cross reference the new petition against the previous, rejected application. This is helpful to identify any potential gaps or areas of weakness before you submit.
A strong I-140 demands communication and collaboration between the sponsor and the worker. This can be achieved with the support of an experienced legal advisor familiar with processing and prevailing adjudication criteria.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
