At least once a week, we are faced with questions from foreign-born employees and/or their employer-based immigration sponsors regarding how to obtain copies of I-140 approval notices.  For a number of reasons, these parties may not have the formal Form I-797, I-140 Approval Notice. For instance, perhaps the sponsoring employer lost the physical I-140 Approval Notice subsequent to approval or perhaps the document never made its way into the hands of the company or G-28 attorney due to some mailing mishap. For the foreign-born sponsored employee, sometimes the former company refuses to or fails to provide a copy of the approval.

Regardless of the scenario, there are a number of ways to obtain a copy of the I-140 approval. In lieu of the actual I-140 approval, there are also ways to institute steps to provide documentation which stands on equal footing to the actual I-140 approval notice. For our office, the actual I-140 approval has the same legal standing as proof of the I-140 approval. We’ll talk about this more in detail later.

First we might ask, why do I need the I-140 approval notice or why do I need proof of an I-140 approval notice?

There are three likely scenarios where one would need the I-140 approval notice, or at least proof of an I-140 approval:

1. Porting the priority date to a subsequent I-140 filing—assume Company A is the first company to file an I-140 for John. This I-140 will lock in John’s priority date for purposes of green card filing or issuance. If John moves on to Company B or Company C, he will be entitled to carry forward or “port” Company A’s priority date into Company B or Company C’s filing. For more information on porting priority dates as well as instructions regarding how to request the port of a priority date, please review our recent article here.
2. Requesting H-1B Extension Beyond Year Six. Typically, H-1B visas are valid for six years. If an individual has an I-140 approval, or can prove an I-140 has been approved on their behalf, the six-year H-1B limit disappears and the individual is then entitled to indefinite H-1B extensions until they finally obtain Lawful Permanent Resident also known as Green Card status.
3. Enabling the H-1B holder to provide their spouse with H-4 Employment Authorization Document (EAD). Typically, the dependent spouse of an H-1B holder will have their own visa known as an H-4. An H-4 visa in and of itself does not provide work authorization. However, once the H-4 holder’s H-1B spouse obtains an I-140 approval, the H-4 spouse would then be eligible for their own work authorization, known as an H-4 EAD. To request and obtain approval of the H-4 EAD, the family will need to prove the H-1B holder has an I-140 approved.

As stated previously, there are a number of scenarios we see every day whereby the I-140 Employee or the I-140 Employer does not have the I-140 approval. In these situations, there are a number of ways to obtain the I-140 approval, or at the very least obtain documentation which stands in the same. The route forward will often depend on who is making the request: 1) the I-140 sponsored individual or the company who filed the I-140.

For the company who filed the I-140 or their successor-in-interest, the company can place a service request with USCIS for non-delivery of a notice if the I-140 approval notice was never received through the mail. The USCIS Ombudsman Office is also rather helpful in these areas. These are free avenues and typically result in USCIS providing the formal Form I-797, I-140 Approval Notice.

Also, the company who filed the I-140 or their successor-in-interest is entitled to file Form I-824, Application for Action on an Approved Application or Petition. It should be noted that only company who filed the I-140 or their successor-in-interest may file this Form I-824; USCIS will reject an I-824 if filed by the sponsored employee. USCIS charges a filing fee of $465 and can take 8-18 months to provide the formal Form I-797, I-140 Approval Notice.

Lastly, both the company who filed the I-140 as well as the sponsored employee immigrant can file a Freedom of Information Act (FOIA) request through USCIS’ online portal to obtain proof of the I-140 approval. Here, we say “proof” of I-140 approval because USCIS will not be providing a copy of the I-797 approval notice. If you want that, USCIS wants their $465 and a properly filed I-824.

Through FOIA, USCIS will provide proof of the approval by way of providing a full copy of the requested I-140 which will include all of USCIS’ relevant notations such as receipt number, date of filing, priority date, and date of approval. For instance when placing a FOIA request for an approved I-140, USCIS is likely to provide a copy of the Form I-140 filed, the supporting Labor Certification (PERM/ETA 9089), and the education/experience documentation requested. On the very first page of the I-140 USCIS will make the aforementioned relevant notations. In our experience, this returned FOIA response documentation has stood on equal footing with the actual Form I-797 Approval Notice in the eyes of USCIS.

Either party—employer or employee—is entitled to file the FOIA request. USCIS does not charge a filing fee for FOIA—it is a free service. Apart from who may file the I-824 as well as the expense inherent in an I-824 filing, FOIA filings are far more efficient than I-824 filings—USCIS typically provides a response within about 4-6 weeks.

For more information, or for a detailed conversation regarding your specific I-140 issues, Freedom of Information Act (FOIA) filings, or other potential issues arising during your Permanent Residency Process or the immigration processes of your employees, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy Neumann Brown PC with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy Neumann Brown PC has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.