Form I-140 Denied: What Next? Understanding Your Options and Steps Forward

When a U.S. Citizenship and Immigration Services (USCIS) Form I-140, Immigrant Petition for Alien Worker, is denied, it can be a significant setback for both the petitioning employer and the beneficiary. However, this is not necessarily the end of the road. The denial of an I-140 petition can result from various reasons, including but not limited to, insufficient evidence to meet the job’s requirements, the company’s inability to pay the proffered wage, or a lack of a bona fide job offer.

After receiving a denial, the petitioner has the right to appeal the decision with the Administrative Appeals Office (AAO) or file a motion to reopen or reconsider the case. Such legal avenues are predicated on presenting new facts or evidence, or pointing out an error in the application of the law by USCIS. Additionally, the entity that filed the petition can choose to reapply by filing a new I-140

petition, ensuring that previous shortcomings are addressed, and the application complies with all the requisite criteria.

Understanding I-140 Denial

When United States Citizenship and Immigration Services (USCIS) denies an I-140 petition, it has critical implications for both the employer and the foreign worker. Understanding the common reasons for denial and the immediate steps to take afterward is essential for effectively managing the situation.

Reasons for I-140 Denial

  • Inadequate Documentation or Evidence: USCIS may reject an I-140 if essential supporting documentation is missing or insufficient to establish eligibility.
  • Ineligibility for the Visa Category: If the petitioner does not meet the criteria for the employment-based category applied for, the I-140 may be denied.
  • Employer’s Ability to Pay: Denial might occur if USCIS is not convinced the employer has the financial ability to pay the proffered wage.
  • Labor Certification Issues: I-140 petitions that are based on labor certification may be denied if there are discrepancies or issues with the labor certification itself.
  • Beneficiary Qualifications: If the beneficiary does not possess the required experience or educational background, the petition may be denied.

Immediate Steps After Denial

  1. Review the Denial Notice: Carefully examine the reasons provided by USCIS for the denial.
  2. Consult with an Immigration Attorney: It is advisable to seek legal counsel to understand the options available.
  3. Consider Re-filing or Appeal: Depending on the reasons for denial, one may reapply with additional evidence or file an appeal or a motion to reopen or reconsider the decision.
  4. Assess Impact on Status: Evaluate how the denial affects the current immigration status of the beneficiary, especially if they are currently residing in the U.S.

Legal Remedies and Options

When an I-140 petition is denied, the applicant or the sponsoring employer has a couple of specific legal avenues to consider: filing a Motion to Reopen or Reconsider, and appealing to the Administrative Appeals Office (AAO). Each option is time-sensitive and entails a detailed procedural approach.

Filing a Motion to Reopen or Reconsider

A Motion to Reopen involves presenting new, material evidence that was not available at the time of the original decision. It requires showing that the new facts are likely to change the outcome of the case. A Motion to Reconsider, on the other hand, is based on a claim that the decision was incorrect based on the evidence already presented. It is critical to clearly demonstrate that the denial was due to an incorrect application of law or USCIS policy.

  • Deadline: Must be filed within 30 days of the decision.
  • Fee: As of the last update, the filing fee is $675.
  • Steps to follow:
    1. Collect additional evidence (for a Motion to Reopen).
    2. Prepare a legal brief citing errors in the denial (for a Motion to Reconsider).
    3. Submit the applicable form along with the fee to USCIS.

The case will be reevaluated by the original adjudicating officer. If the decision remains unfavorable, it can be reviewed by the AAO.

Appealing to the Administrative Appeals Office

If the decision is still not in the applicant’s favor after a Motion to Reopen or Reconsider, they may file an appeal with the Administrative Appeals Office. This federal body reviews the decisions made by USCIS officers to ensure consistency and correctness in the application of immigration law and policy.

  • Requirements: Only available if the denial notice indicates that the case may be appealed.
  • Deadline: Appeals to the AAO must be filed within 30 days after the receipt of the decision (or 33 days if the decision was received by mail).

When appealing to the AAO:

  1. File Form I-290B, Notice of Appeal or Motion, along with the appropriate fee.
  2. Include a comprehensive brief that outlines the reasons for the appeal and supporting legal arguments.
  3. Send the documentation to the office that made the original decision, as they will forward the appeal to the AAO.

It is often beneficial to seek the guidance of an experienced immigration attorney to navigate these processes efficiently and to increase the chances of a successful outcome.

Reapplying for I-140

When an I-140 petition is denied, applicants have the option to reapply. This process requires careful evaluation of eligibility and thorough preparation of the new petition to address the reasons for prior denial.

Evaluating Eligibility for Reapplication

Before reapplying, it is crucial for the petitioner to reassess their eligibility. They should examine the denial notice, provided by USCIS, to understand the specific reasons for rejection. This assessment helps in determining whether the deficiencies can be addressed and corrected. If eligibility criteria have not changed and the reasons for denial are rectifiable, reapplication may be a viable step.

Preparing a New I-140 Petition

To prepare a new I-140 petition, meticulous attention to detail is required. Documentation is key, and new evidence or supporting documents should be included to overcome previous obstacles. The petitioner should:

  • Ensure that all forms are current and properly filled out.
  • Compile a comprehensive package of supporting documents that align with USCIS requirements.
  • Provide clear and factual information that rectifies issues raised in the initial denial.

By taking these steps, the petitioner can increase the likelihood of approval upon reapplication.

Alternative Visa Options

After a Form I-140 denial, it’s crucial for applicants to consider alternate routes to work and live in the United States. Two pragmatic paths are seeking nonimmigrant visa alternatives and exploring other employment-based green card categories.

Seeking Nonimmigrant Visa Alternatives

If an individual’s I-140 petition is denied, they may explore nonimmigrant visa categories as a temporary solution. Options may include:

  • H-1B Visa: Allows U.S. employers to temporarily employ foreign workers in specialty occupations.
  • L-1 Visa: For intracompany transferees who work in managerial positions or have specialized knowledge.
  • O-1 Visa: For individuals with extraordinary ability in the sciences, arts, education, business, or athletics.

These visas offer the flexibility to work legally in the U.S. and, for some, a potential path to apply for a green card in the future.

Exploring Other Employment-Based Green Card Categories

Alternatively, the applicant may qualify under a different employment-based green card category:

  • EB-1: For foreign nationals with extraordinary ability, outstanding professors and researchers, or certain multinational executives and managers.
  • EB-3: Aimed at skilled workers, professionals, or other workers with less than two years of training or experience.

Seeking eligibility under a different category may necessitate a new I-140 petition and compliance with the specific criteria of that category.

Impact on Current Immigration Status

When a Form I-140 is denied, the current immigration status of the individual may be directly affected. It is critical for the individual to understand the implications on their ability to remain lawfully in the United States, as well as the potential ramifications of overstaying their visa.

Maintaining Lawful Presence

An individual must have a valid nonimmigrant status to remain lawfully in the United States after a Form I-140 denial. They should review the expiration date of their I-94 form, as this document indicates how long they are authorized to stay. If the Form I-140 was filed concurrently with an I-485 application for adjustment of status, and both are denied, the individual no longer has a pending application that permits lawful presence.

Consequences of Overstaying

Overstaying a visa can lead to severe legal consequences, including but not limited to:

  • Inadmissibility: Individuals who overstay may become ineligible to apply for future visas, or for admission into the United States.
  • Deportation: They risk being removed from the country and may face bars on re-entry for a certain number of years.
  • Impact on future immigration benefits: Overstaying can affect future immigration petitions, making it crucial for those affected by an I-140 denial to leave the country before their authorized period expires or seek legal remedies to maintain status.

Consulting Immigration Legal Professionals

When an individual’s Form I-140, Immigration Petition for Alien Worker, is denied, seeking guidance from immigration legal professionals is a critical step. Experienced immigration attorneys can assess the denial notice, identify the underlying reasons for the rejection, and advise on the appropriate course of action.

Initial Consultation

  • Review of Denial Notice: An attorney can clarify the specific grounds for denial, which is essential for determining the next steps.
  • Assessment of Case Strength: They can evaluate the potential for a successful appeal or the prospects of re-filing the petition.

Strategic Planning

  • Options after Denial: Legal professionals can outline the available options, such as filing a motion to reopen or reconsider, an appeal with the Administrative Appeals Office (AAO), or reapplying.
  • Long-term Consequences: They provide insight into how the denial may affect future immigration applications and the individual’s status.

Documentation and Preparation

  • An attorney can assist with the preparation of a comprehensive and well-documented file if reapplication is advised, ensuring adherence to all regulatory requirements.

Timing and Deadlines

  • Legal professionals are well-versed with the strict timelines for appeals or motions after a denial; they ensure all deadlines are met to maintain legal standing.

Engaging with immigration legal professionals offers not only a thorough understanding of the complex immigration process but also a tailored strategy to enhance the likelihood of a positive outcome in the wake of a denied I-140 petition.