New I-140 : Immigrant Petition for Worker - Effective Jan 31, 2002
Posted Dec 14, 2001

The Immigration and Naturalization Service is implementing a new Form I-140, Immigrant Petition for Alien Worker. The prior form bears a revision date of September 26, 2000 and is acceptable only through January 31, 2002, according to INS. The new Form, with a revision date of August 30, 2001 is available currently on the INS WebSite and is the only Form acceptable after January 31, 2002. The filing fee of $115.00 has not changed, though the INS has proposed a fee increase in early 2002 on various forms, which is due to increase early.

The I-140 is used to petition for a non-U.S. worker in an immigrant (permanent) case. The form is used for all first, second, and third preference employment-based petitions (EB1; EB2; EB3). Most aspects of the form are unchanged from the previous version. One favorable feature is that the attorney or representative is allowed to request that the INS contact him or her via eMail or fax in the event of a Request for Evidence (RFE).

As some of you know, the INS sends RFEs to request supplemental proof of necessary case elements. Many I-140 cases receive RFEs prior to approval. Currently, the RFEs are sent by ordinary mail. This can result in lost notices and delays in receipt. This is significant, as RFEs contain a time-sensitive deadline for response. In the case of complex a RFE, it may require substantial time to properly prepare a response. Additionally, the case does not move forward until INS receives a response to the RFE.

Another favorable feature in the new Form I-140 is that the form contains space to list the beneficiary's spouse and children. This was previously requested with a direction that the information be provided in an addendum. This information was sometimes omitted inadvertently by individuals filing the I-140, due to the manner in which the question was presented on prior versions of the form. While this was not always consequential, it could become an issue at consulates in "following-to-join" cases if the consular officers question the existence and the duration of familial relationships. It is not uncommon in these instances for the previously filed forms to be reviewed in order to determine whether the beneficiary "claimed" the relatives at that time. If the relative was not previously mentioned and seemingly appears "out of the blue" questions would be raised.

The form also requires the NAICS (North American Industry Classification System) Code and the SOC (Standard Occupational Classification) Code. This does not impact upon the applicant but allows for tracking of industries and positions for which H1B cases are filed. The WebSites for obtaining these codes are listed in the instructions for the form.

For MurthyBulletin and MurthyDotCom readers who are not clients of our firm, please double check the revision date on any current I-140 filed by you or on your behalf. If an out-dated version of Form I-140 is used, the INS will reject the filing and this will delay your case. There are a number of reasons that this mistake can happen, including early preparation of a form followed by delay in obtaining signatures or the practice of having forms signed in blank for later use (though this is risky and should generally be avoided). Additionally, there are sometimes delays in the updates of immigration forms software or in implementation of the updated software within an office. Whatever the reason, it is wise to check the revision date listed on the lower right corner of each page of the form.