What Is the Difference Between the I-140 and the I-485 Forms?

As with forms in general, the I-140 and the I-485 are quite different. While both pertain to United States immigration forms, the former refers to an employment-based petition, and is a formal supporting document to the I-485. The latter is an application used for registering permanent U.S. residence, or to make adjustments to the petitioner’s immigration status. 

Whether the reason for obtaining permanent residency is based on employment, marriage to a U.S. citizen or for other humanitarian purposes, both Forms I-140 and I-485 must be filed.

Additionally, Form I-140 must be submitted to the U.S. government and processed before Form I-485 can be processed. Though this is the case, foreign nationals petitioning for employment-based visas are afforded the option to file both forms at the same time. Depending on the foreigner’s employment and their visa category, a sponsoring employer may be required to file an I-140 on their behalf.

Visa Categories for Forms I-140 and I-485

Forms I-140 and I-485 are used specifically for immigrant visa petitioners, based on employment in the U.S. As with many other U.S. visa categories, these forms are filed with the United States Citizenship and Immigration Services (USCIS).

Such employment-based visa categories include, though are not limited to the following:

• EB-1: Employment-Based, First preference (priority workers)
• EB-2: Employment-Based, Second preference (advanced degree professionals and exceptional ability professionals)
• EB-3: Employment-Based, Third preference (professionals, skilled and unskilled workers)
• H-1B: Specialty Workers (professionals) 
• L-1: Intracompany Transferees (managerial or executive professionals)

Form I-140

The Immigrant Petition for Alien Workers (Form I-140), can be filed by a foreign petitioner, or   by a U.S. sponsoring employer on their behalf. Instances where an employer files the I-140 with the USCIS serves as official communication that they seek to sponsor the foreign worker’s employment-based visa. Needless to say, this is contingent upon the offer of the job, and acceptance by the foreign national.

Form I-140 functions as a basis for both the foreigner’s and their sponsor’s eligibility.

It is also important to note here that an I-140 approval is contingent on the sponsor applying for, and obtaining a permanent labor certification from the Department of Labor (DOL). Conversely, there are employment-based visa categories without the labor certification requirement, which saves a minimum of one year’s time.

Upon the submission and USCIS acceptance of Form I-140, the petitioner will subsequently receive a notice back regarding his or her priority date, for the purposes of when Form I-485 can be filed. This is important, because any I-485 form submitted separately from a respective I-140 will not be processed until the priority date is current. Priority dates are explained in more detail below.

As previously mentioned, the USCIS allows for concurrent filing of the I-140 and the I-485 forms, which saves time for the applicant and their prospective employer. Circumstances arise, however, where applicants may be unsure of whether their case is strong enough to warrant an employment visa, so they often elect to wait for approval before proceeding to file their I-485 application.

The U.S. Department of State’s (DOS) website has exhaustive information on the preferential categories of employment-based visas, however they are typically categorized by EB-1, EB-2 EB-2 and EB-3. Here, the DOS also expands on which categories require employer sponsorship.

We also have a guide discussing the I-140 premium processing if you think you may need to file quickly.

Form I-485

The Application to Register Permanent Residence or Adjust Status (Form I-485) is often referred to as a green card petition. It is filed by the foreign petitioner, or their representative. Essentially, Form I-485 is needed in order to apply for legal U.S. permanent residency. Employment-based immigrants and nonimmigrants alike will need to file an I-485 application — no matter where they are, physically, at the time of their application.

It is worth mentioning that dependents (a spouse, or child(ren) younger than 21) are likewise required to have their I-485 filed with the USCIS for processing.

The following items are required to be disclosed within an I-485 form:

• Residential history
• Employment history
• Criminal history
• Previous immigration violations
• Previous associations with actions against government(s)
• Other evidentiary documentations

I-140 Priority Date

Each year, the DOS receives a predetermined number of visas that can be issued in that respective year.

The reason for this is based on limitations as well as demands. Wait times for priority dates to become current depend on the following four factors:

• The demand for immigrant visas
• The supply of immigrant visas
• Visa limitations per country
• The number of visas allocated for each preference category

If the demand for immigrant visas is higher than the supply, applicants will experience longer wait times, as a waitlist has been formed. 

Therefore, upon receipt of an I-140, the USCIS will send the petitioner a Notice of Action (Form I-797) indicating his or her priority date. Accordingly, employment-based visa applicants are responsible for referring back to the DOS’s Visa Bulletin website to find whether their priority date is current. 

The terms (priority date availability and a category being current, used interchangeably), signify that there is no wait list for a permanent resident card, as the U.S. government establishes there are now enough visas available within that particular category. A green card is thus available for the foreign employee, and he or she needs to file their application to adjust their status via their I-485 form.

• EB-1: The exact date the USCIS receives the petitioner’s I-140 form (from the employing sponsor, from the applicant or from the applicant’s representative)
• EB-2: The exact date the DOL receives the petitioner’s permanent labor certification application 
• EB-3: The same as EB-2 — the exact date the DOL receives the petitioner’s permanent labor certification application

Check out our post about applying for an Eb-2 NIW visa if you need further information.

Next Steps After Filing Forms I-140 and I-485

Upon the approval of Form I-485 by the USCIS, and if the beneficiary has not already done so, he or she may proceed to filing an Application for Employment Authorization (Form I-765) and an Application for Travel Document (Form I-131). Approval of the I-765 form officially gives him or her lawful work authorization while they wait for their permanent resident status. Similarly, approval of the I-131 form subsequently permits them to travel internationally, should they wish to enter/reenter the country.

I-140 and the I-485 Form FAQs

Conclusion

Navigating the U.S. immigration process involves understanding the distinct yet interconnected roles of Forms I-140 and I-485. While Form I-140 is the critical first step in employment-based immigration petitions, verifying both the foreign worker's and sponsor's eligibility, Form I-485 follows as the application for adjusting status to permanent residency. Each form has specific requirements and processes that must be meticulously followed to ensure timely and successful outcomes. By adhering to USCIS guidelines and monitoring priority dates, applicants can effectively manage their immigration journey, from initial petition to obtaining a green card. Understanding these forms and their respective processes is crucial for foreign nationals and sponsoring employers aiming to achieve permanent residency in the United States.