An approved Form I-140 is the employer's petition for you to become a lawful permanent resident, and approval moves you to the next question: is an immigrant visa available to you? USCIS says an immigrant visa must be immediately available to you when you file Form I-485, and that the Department of State uses your priority date to determine your place in the visa queue. If the visa is not yet available, the approval can still matter for some H-1B workers who need to stay past six years.
What Form I-140 is
USCIS describes the form this way: "Use this form to petition for an alien worker to become a lawful permanent resident in the United States." It is a petition filed on your behalf. It is not the green card application itself. The application for the green card is Form I-485, covered on our Form I-485 page, and the petition is covered on our Form I-140 page. For how long the petition takes, see I-140 processing times.
An approval of the petition does not by itself say that a visa number is available. That is a second step with its own rule, explained next.
Your priority date
USCIS explains that the Department of State "uses the priority date to determine an immigrant's place in the visa queue." For employment-based cases, the date depends on whether a labor certification was needed:
- If a labor certification is required, the priority date is the date the Department of Labor (DOL) accepts it for processing. USCIS says the I-140 must be filed "within 180 days of the DOL approval date on the labor certification" to keep that date.
- If no labor certification is required, the date is when USCIS accepts Form I-140 for processing to classify the worker in the requested preference category.
So the priority date is set when those filings are accepted, not when the I-140 is later approved. Our article on priority date versus filing date goes further.
Checking whether a visa is available
USCIS says it accepts Form I-485 from preference applicants "according to the monthly Visa Bulletin" that the Department of State publishes. The Visa Bulletin has two charts: Application Final Action Dates and Dates for Filing Applications. For deciding when you can file Form I-485 with USCIS, the Visa Availability and Priority Dates page says: "Unless otherwise indicated on our Adjustment of Status Filing Charts for Visa Bulletin webpage, you must use the 'Application Final Action Dates' for determining when you can file a Form I-485 with USCIS."
The filing charts page explains the monthly rule. If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants, it says it will state on that page that you may use the Dates for Filing chart. Otherwise it will indicate that you must use the Final Action Dates chart. The page adds that if a category is "current" on the Final Action Dates chart, or its Final Action cutoff date is later than the Dates for Filing date, applicants in that category may file using the Final Action Dates chart during that month. USCIS designates one chart each month, so this article does not say which one applies now. Check the USCIS filing charts page for the current month, and see our Visa Bulletin page for the bulletin itself.
Filing the I-485
For EB-1, EB-2, and EB-3 immigrants in the United States, USCIS says that if a visa is immediately available you may file Form I-485 in one of three ways in relation to the I-140:
- Together ("concurrently") with the Form I-140 filed on your behalf,
- While the Form I-140 is pending, or
- After the Form I-140 is approved (and remains valid).
USCIS lists, as a condition, that an immigrant visa is immediately available to you at the time you file Form I-485 and at the time USCIS makes a final decision on your application. For filing together with the I-140, the Visa Availability and Priority Dates page says you may do so only if approval of the underlying petition would make a visa immediately available, for example when your priority date is earlier than the cutoff in the Application Final Action Dates chart, when the chart shows "C" for your category and country, or, when USCIS permits it, when your priority date is earlier than the Dates for Filing cutoff. If you are filing both forms at once, USCIS says on the I-140 page not to combine your supporting documents and recommends a separate package for each form. Whether and when to file is a question for a licensed immigration attorney, because it depends on facts about your category, your date, and your status.
If you are on an H-1B and the visa is not available
USCIS's H-1B page describes extensions past the six-year point. It says you may be eligible for an H-1B extension beyond the sixth year if you are the beneficiary of an approved immigrant visa petition under the EB-1, EB-2, or EB-3 classifications and are eligible to be granted that immigrant status but for the per-country or worldwide limits on immigrant visas. Petitioners must demonstrate the visa is not available as of the date they file an H-1B petition with USCIS. USCIS says it may grant extensions on this basis in up to 3-year increments until it makes a final decision to revoke the approval of the immigrant visa petition, or to approve or deny the immigrant visa application or application to adjust status. Alternatively, you may be eligible for an extension beyond the sixth year if at least 365 days have passed since a labor certification was filed with the Department of Labor on your behalf (if one is required) or an immigrant visa petition was filed with USCIS on your behalf.
USCIS also states a limit. It says you are ineligible for this extension beyond the sixth year if you fail to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being available, and the page explains how that one-year period can be interrupted or excused. The H-1B page also carries separate alerts about other recent H-1B rules and court orders, so read the whole page, and ask an attorney about your own case. Our H-1B page has the general background.
What this article leaves out
This article does not cover several things people ask after an approval: what happens to an approved petition if you change employers, how a petition can be revoked, or how a spouse and children are treated. Those depend on rules that are best checked on the current USCIS pages for your situation, or with an attorney.
Common questions
Does an approved I-140 mean I can file my I-485 now?
Not automatically. USCIS says an immigrant visa must be immediately available to you when you file Form I-485 and when USCIS makes a final decision. USCIS uses the monthly Visa Bulletin and its own Adjustment of Status Filing Charts page to say which chart applies for filing.
Can I file the I-485 while the I-140 is still pending?
USCIS lists that as one option, along with filing together with the I-140 and filing after approval. The visa availability condition still applies.
How is the priority date set?
For cases needing a labor certification, it is the date DOL accepts it for processing. Without one, it is the date USCIS accepts the I-140 for processing.
Can an approved I-140 help an H-1B worker stay beyond six years?
USCIS says a beneficiary of an approved immigrant visa petition under EB-1, EB-2, or EB-3 may be eligible for an H-1B extension beyond the sixth year when the visa is not available because of the per-country or worldwide limits. A separate path applies once at least 365 days have passed since a labor certification or immigrant visa petition was filed. Check the H-1B page for the conditions.
Official sources
- USCIS: Form I-140, Immigrant Petition for Alien Workers
- USCIS: Green Card for Employment-Based Immigrants
- USCIS: Visa Availability and Priority Dates
- USCIS: Adjustment of Status Filing Charts from the Visa Bulletin
- USCIS: H-1B Specialty Occupations
GreenLight is not affiliated with USCIS or the U.S. government. This article is for informational purposes only and does not constitute legal advice.