Step 2 of the Green Card Process:
The I-40 Immigration Petition for Alien Worker
Once a labor certification application is approved by the Department of Labor (“DOL”), the employer may file the Form I-140 Immigrant Petition for Alien Worker with USCIS. The I-140 petition essentially demonstrates the employer’s commitment to employ the foreign national once the green card is issued. In its petition, the sponsoring employer must establish that the employer has had the ability to pay the wage listed in the labor certification application since filing that application. In addition, the petition must demonstrate that the foreign national met all of the job qualifications (education and experience requirements) at the time the labor certification application was filed.
If an immigrant visa number is available for the foreign national at the time of filing the I-140, the foreign national may concurrently file the I-485 Application to Adjust Status to Permanent Residence if s/he is in status in the U.S. If a visa number is not available at the time of filing the I-140, the foreign national must wait until a visa number becomes available to file the I-485. The availability of visa numbers is determined by the foreign national’s priority date (the date the labor certification was filed or if no labor certification was required, the date the I-140 was filed), preference category, and country of birth. Consult the State Department’s visa bulletin for immigrant visa availability.