Whether properly or otherwise, USCIS can and does deny I-140s for a number of reasons. In the context of EB-1C Multinational Managers/Executives, the denial is likely attributable to the Petitioning company’s inability to clearly demonstrate the connection between the foreign and domestic entities or perhaps a job offer whose proposed duties fail to meet the requirements of a manager or executive. In the context of EB-2 and EB-3 immigrant visas, denials are most heavily attributable to the company’s inability to demonstrate sufficient financial solvency (ability to pay) or the Beneficiary’s inability to demonstrate a level of education and/or experience required of the job offer.
However, when faced with an I-140 denial there are a number of avenues forward. From re-filing the case, to filing appeals, to starting again from square one, there are a number of avenues to secure an immigrant visa approval. Of course, it is imperative to understand the reason(s) for the I-140 denial to recognize the most efficient or practical route forward.
First and foremost, an I-140 denial does not preclude the sponsoring company from simply re-filing the petition. USCIS looks at each and every petition on their own merits and the fact that a previous petition was denied in no way prejudices a future filing.
If an I-140 requires a PERM Labor Certification (ETA 9089), an I-140 denial does not invalidate that PERM nor does an I-140 denial prevent the use of that PERM in future filings. Generally, a PERM is valid for six months; so long as a single I-140 is filed within that six-month validity period USCIS then considers that PERM valid indefinitely meaning it can be used to re-file and/or amend that I-140 after six-month PERM validity period expires. Therefore, if you face an I-140 denial there is no explicit need to obtain a new Labor Certification. A company can use that Labor Certification (even if expired) to re-file an I-140 for their sponsored employee and there is no deadline to re-file that I-140.
Without being overly harsh toward USCIS, it has been our experience that denials are typically attributable to USCIS’ clear adjudicative error or otherwise their inability to properly apply the regulations or policy in the proscribed manner. Of course, there are cases which not even the most novice officer would approve and we must respect that. However, a denial should not be thought of as fatal.
If faced with a denial, a company can re-file the case by re-submitting the case with fresh $700 filing fees. Generally, USCIS will review the case as if the denial never occurred. USCIS processes the case within the “regular” processing timeframe of 4-8 months and premium processing is typically available for re-filed cases. Unless there is something seriously wrong with the filing, it is rare to see a re-filed I-140 denied.
Beyond re-filing, a company also has the right to appeal that denial by timely filing a Form I-290B. The petitioning company can directly appeal the denial to the Administrative Appeals Office (AAO) or it can file a Motion to Reconsider. For either mechanism, the filing fee to USCIS is $675. When filing a Motion to Reconsider, the case is sent back to the denying officer for re-examination. If that officer maintains their stance, the case is then sent to the AAO to evaluate the Officer’s decision to uphold the denial. Whether filing a straight appeal to the AAO or incidentally via a Motion to Reconsider, if the AAO upholds the denying officer, the case shall remain denied. If the AAO sides with the sponsoring employer, they will order the officer to issue an approval.
When faced with the decision to re-file or appeal, typically the company’s goals will be better served re-filing a case rather than filing an appeal/Motion to Reconsider. While the filing fees of an Appeal/Motion to Reconsider are less than the cost of re-filing the I-140, it will take far longer to receive any movement from USCIS or the AAO with an Appeal/Motion to Reconsider. A re-filing will get you an answer within 4-8 months whereas the expectations of any movement with Appeal/Motion to Reconsider is 12-36 months. Additionally, USCIS tends to be far “harsher” in their review of cases on Appeal/Motion to Reconsider than they are with re-filed cases. Additionally, a company must file the Appeal/Motion to Reconsider within 30 days of the denial.
If re-filings or Appeals/Motions to Reconsider are unsuccessful or if upon review of the initial denial the success of Appeals/Motions to Reconsider is unlikely, these results are typically due to the I-140 petition’s incongruence and/or insufficiency under the requirements of the underlying PERM Labor Certification (or job offer is a PERM is not required). In this case, the likely avenue forward is to obtain a new PERM Labor Certification clear of the issues causing the first denial.
When faced with a denial, it is critical to review USCIS’ denial as promptly as possible so that all possible avenues are not foreclosed. While an I-140 denial is very rarely fatal to a company or to an individual immigrant, it certainly stalls the process adding months if not years onto an already lengthy endeavor.
By Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is an attorney at Reddy & Neumann P.C. assisting helping clients and their employees through the phases of the 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 utilizing a relentless and detail-oriented work ethic to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem, he and his team will find a solution, through wisdom and effort.