Overview: An approved Form I-140 classifies a worker as EB-1, EB-2, or EB-3, but it is not a green card and does not grant status or work authorization by itself. What it does is lock in a Priority dateThe date a petition was filed, or a labor certification was submitted, used to determine an applicant's place in line for a visa category with limited annual numbers.See it in the glossary and, after 180 days, protect several benefits even if the employer withdraws the petition. Here is what an approved I-140 does and does not do.
What approval does not do
Approval does not let anyone file for a green card early. The worker still waits until their priority date is reached in the Visa BulletinA monthly State Department publication showing which family and employment visa categories currently have visas available.See it in the glossary, then files Form I-485Application to Register Permanent Residence or Adjust Status, the form used to apply for a green card from inside the United States.See it in the glossary in the United States or completes the process at a consulate. It also does not extend or change the worker’s current visa status on its own.
Priority date retention
Under the 2016 DHS rule, the priority date of an approved EB-1, EB-2, or EB-3 I-140 can carry over to a later approved I-140, even with a different employer. The exception is when the approval is revoked for fraud, willful misrepresentation, material USCIS error, or revocation or invalidation of the underlying Labor certification (PERM)The Department of Labor process in which an employer shows that no qualified U.S. worker is available for a position, required for most EB-2 and EB-3 petitions.See it in the glossary.
The 180-day mark
Once an I-140 has been approved for 180 days, or the related I-485 has been pending for 180 days, the same rule says the petition is not automatically revoked just because the employer withdraws it or goes out of business. That keeps the approval available for the benefits below. Before that point, a withdrawal generally leads to revocation, though the priority date itself can still be retained.
H-1B beyond six years
Cap-subject and cap-exempt (H-1B)The H-1B category has an annual limit of 65,000 new visas or statuses per fiscal year, plus 20,000 more for people with a U.S. master's degree or higher. Petitions counted toward that limit are cap-subject. Petitions from higher education institutions, their related or affiliated nonprofits, and nonprofit or governmental research organizations are cap-exempt.See it in the glossary status normally tops out at six years. A provision of the Portability (AC21)Rules allowing certain employment-based applicants whose I-485 has been pending 180 days or more to change employers without losing the petition.See it in the glossary law allows three-year extensions past that limit for H-1B workers with an approved I-140 who are waiting because of Per-country limitThe cap, set at 7 percent of the combined family and employment totals, on how many preference visas may go to natives of any single country in a fiscal year.See it in the glossary. A separate provision allows one-year extensions when a labor certification or I-140 was filed at least 365 days earlier.
There is a catch. The regulations can bar these extensions if the worker’s priority date has been current on the Final Action Dates chart and they did not file for a green card within a year, as this law firm alert explains.
Compelling circumstances work permit
The 2016 rule also created a one-year work permit for people in E-3, H-1B, H-1B1, O-1, or L-1 status, including a grace period after those statuses, who have an approved I-140 but no available visa number and no pending green card application. They must show compelling circumstances. Renewal requires continuing compelling circumstances or a priority date within one year of the current cutoff, according to this rule summary.
After the I-485 is filed
Once a green card application has been pending for 180 days, the worker may be able to move to a new job in the same or a similar occupation and keep the case alive. Our explainer on AC21 job portability covers how that works.