The Form I-140, Immigrant Petition for Alien Worker, is the cornerstone of most employment-based permanent residency cases. Whether filed under the EB-1, EB-2, or EB-3 category, the I-140 requires a petitioner to establish—through credible, contemporaneous, and verifiable evidence—that the beneficiary qualifies for the requested classification and that the employer possesses the ability to offer the proffered permanent position.
Although the standards for each category differ, USCIS increasingly applies a rigorous level of scrutiny, leading to a rise in Requests for Evidence (RFEs). These RFEs often reflect a deeper inquiry into job requirements, the employer’s financial structure, beneficiary qualifications, and compliance with Department of Labor (DOL) regulations. Understanding the nature of these RFEs is essential not only for responding effectively, but also for preventing them through comprehensive initial filings.
Regulatory Framework Governing I-140 Petitions
An employer’s eligibility to file an I-140 petition is governed primarily by:
- 8 CFR §204.5 – sets forth evidentiary requirements for each employment-based immigrant category.
- 20 CFR §656.10–656.32 – governs PERM labor certification requirements underlying most EB-2/EB-3 filings.
- INA §§203(b)(1), (b)(2), (b)(3) – outlines statutory bases for priority workers, professionals with advanced degrees, and skilled/other workers.
USCIS evaluates each petition based on a preponderance of the evidence standard. Petitioners must demonstrate that the claim is “more likely than not” true—a standard often misunderstood and one that frequently leads to RFEs when the initial documentation is insufficiently persuasive.
Common Categories of I-140 RFEs
Below are the most frequent areas where USCIS requests additional evidence, along with the legal rationale behind each.
1. Ability to Pay the Proffered Wage
Regulatory Basis:
8 CFR §204.5(g)(2) requires petitioners to establish ability to pay from the priority date onward.
Typical USCIS Concerns:
- Negative net income or insufficient net current assets
- Large fluctuations in revenue
- Payroll records not matching the wage offered
- Multiple I-140 beneficiaries (the “multiple pending petitions” issue)
Recommended Evidence:
- Federal tax returns (complete, with all schedules)
- Audited financial statements
- Annual reports
- W-2s or pay stubs showing ongoing payment of the proffered wage
2. Beneficiary’s Qualifications
Regulatory Basis:
8 CFR §204.5(k)(3), §204.5(l)(3), and §204.5(i)(3) (depending on classification).
Typical USCIS Requests:
- Missing or unclear degree equivalency evaluations
- Experience letters lacking detail about job duties
- Experience gained with the sponsoring employer (subject to 20 CFR §656.17(i))
- Inconsistent names, dates, or credential formatting
Recommended Evidence:
- Detailed experience letters on company letterhead, signed by authorized supervisors
- Credential evaluations for foreign degrees
- Organizational charts and job descriptions where needed
- Additional affidavits from coworkers (secondary evidence)
3. Job Requirement Validity and PERM Compliance
Regulatory Basis:
20 CFR §656.17(h), §656.24.
USCIS Focus:
- Whether the job requirements exceed the DOL’s standard for the occupation
- Whether the employer has unlawfully tailored the job to the beneficiary
- Whether job requirements were present prior to hiring the beneficiary
Red Flags That Trigger RFEs:
- Requirements that appear overly specific or restrictive
- PERM duties not matching the I-140 duties
- Missing notice of filing or recruitment documentation (if requested)
Recommended Evidence:
- Detailed explanation of business necessity
- Market research or industry data supporting requirements
- Consistent forms across ETA-9089 and Form I-140
4. Employer’s Ongoing Business Operations
USCIS Concern:
Is the company real and operating? Does it have a bona fide need for the position?
Common RFEs:
- Request for office lease, utility bills, or proof of physical premises
- Request for proof of active business such as invoices, contracts, or bank statements
- Verification of FEIN or corporate existence
Recommended Evidence:
- Articles of incorporation
- Good standing certificates
- Active state registration
- Contracts, client agreements, or invoices showing ongoing business
5. Inconsistencies Between PERM, I-140, and Supporting Evidence
USCIS Often Flags:
- Different job titles or duties
- Different wage information
- Beneficiary’s dates of employment that do not match records
- Employer names that changed without explanation (e.g., mergers or acquisitions)
Recommended Evidence:
- Explanatory affidavit from the employer
- Corporate restructuring documents, if applicable
- Corrective evidence clarifying administrative errors
Special Considerations for EB-1 and Schedule A Categories
A. EB-1A (Extraordinary Ability)
RFEs typically target whether achievements rise to the “sustained national or international acclaim” standard.
Evidence must satisfy both part one (criteria) and part two (Kazarian final merits analysis).
B. EB-1B (Outstanding Researchers/Professors)
USCIS scrutinizes whether the petitioner is a qualifying research entity and whether the beneficiary’s work is truly “outstanding.”
C. EB-1C (Multinational Managers and Executives)
Common RFEs relate to:
- Qualifying corporate relationship
- Managerial duties (must be primarily managerial, not operational)
- Staffing structures
D. Schedule A (Nurses and Physical Therapists)
USCIS may request:
- Proof of licensure
- Evidence of passing CGFNS or NCLEX
- Notice of Filing documentation
Strategies to Avoid or Effectively Respond to RFEs
1. Consistency Across All Filings
USCIS heavily cross-references ETA-9089, I-140, pay records, tax filings, and internal HR data.
2. Use of Detailed, Fact-Specific Employer Letters
Generic letters are often rejected. Letters must clearly explain:
- Corporate structure
- Job duties
- Reasonable business necessity
- Beneficiary contributions
3. Evidence Prepared in Anticipation of Scrutiny
This approach—often used by senior immigration attorneys like Rajiv Khanna—reduces RFEs dramatically.
A well-prepared I-140 should assume that USCIS will question eligibility.
4. Clear Financial Documentation
When possible, showing actual payment of the proffered wage eliminates an entire category of RFEs.
Immigration Fleet Law Firm PLLC Recommendations
As USCIS continues to intensify adjudicatory standards, employers and beneficiaries should adopt a more proactive strategy:
Our Firm Recommends:
- Pre-Filing Audit:
Conduct a detailed review of taxes, payroll, recruitment, and job descriptions before filing the I-140. - Experience Letter Preparation Assistance:
Ensure letters are compliant, detailed, and persuasive. - Consistent Documentary Strategy:
Align PERM, job descriptions, corporate documents, and I-140 evidence to avoid contradictions. - Early Issue Detection:
Identify potential ability-to-pay issues or credential gaps before USCIS does. - Rapid RFE Response Protocol:
In the event of an RFE, prepare a fact-driven, evidence-backed, citation-supported response to minimize delays.
Conclusion
Employer-sponsored I-140 petitions are increasingly subject to strict scrutiny, and RFEs are now a routine part of the adjudication landscape. While many RFEs result from avoidable inconsistencies or insufficient initial documentation, others arise from legitimate complexities within a petitioner’s business or the beneficiary’s background. By understanding the regulatory framework, anticipating common areas of concern, and adopting a disciplined documentary strategy, employers can significantly reduce delays and maximize the likelihood of approval.
With careful planning and a legally sound evidentiary record, the I-140 process can proceed smoothly—even in a challenging adjudicatory climate.
Immigration Fleet Law Firm stands ready to assist employers and beneficiaries in preparing strong petitions and responding effectively to USCIS inquiries.
