Petition I-140 is Denied: What To Do Next?

If you’ve received a denial notice for your Form I-140, Immigrant Petition for Alien Worker, don’t panic.

Denial can be frustrating, and feel like a major setback—especially if you’ve already invested months or years in your employment-based green card process. The employment-based immigrant visa is a significant milestone for foreign workers seeking U.S. permanent residency, and the I-140 petition process is a crucial step in obtaining this visa. But a denial is not necessarily the end of the road. In many cases, applicants have options to regroup, strengthen their case, or explore new immigration strategies.

This guide will help you understand your options after an I-140 denial, including how to strengthen your case, appeal, or take alternative actions—all while maintaining your legal immigration status.

What Is Form I-140 and Why It Matters

Form I-140 is a key step in applying for an employment-based green card. It shows that:

• You or your U.S. employer is sponsoring you for permanent residence.
• You meet the qualifications for a job in one of the employment-based visa categories (EB-1, EB-2, or EB-3).
• Your employer has the ability to pay your wage.
• The job and employer meet the category requirements.
• There’s an intent to employ and be employed.
• The prospective employer is responsible for accurately filing the I-140 petition with the necessary supporting documentation to demonstrate eligibility for the visa.
• The labor certification application is crucial in the EB-2 visa process, as it proves that no qualified U.S. workers are available for the position and must be accurately and comprehensively documented to avoid denials.

When USCIS denies an I-140 petition, it usually provides a written notice with detailed reasons for the decision.  Understanding those reasons is critical to deciding your next move.

Common Reasons for I-140 Denial

Before we get into your options, here are the most common reasons for I-140 denials:

• Insufficient supporting evidence
• Missing documents (e.g. diplomas, letters)
• Failure to meet the visa category criteria
• Inability of employer to pay offered wage
• Inconsistencies or errors in the application
• Lack of federal tax returns to demonstrate employer’s ability to pay the prevailing wage
• Failure to include the appropriate filing fee when submitting the I-140 petition

If you’re unsure why your petition was denied, request a Freedom of Information Act (FOIA) copy of your file from USCIS: Submit FOIA Request to USCIS

Understanding the Denial Notice

Receiving a denial notice from USCIS can be a disappointing and overwhelming experience, especially after investing significant time and resources into the application process. However, it’s essential to understand the denial notice and the specific grounds for denial to determine the best course of action.

Reviewing the Denial Notice

When reviewing the denial notice, it’s crucial to carefully read and understand the reasons for denial. The notice will typically outline the specific grounds for denial, which may include:

• Insufficient evidence or documentation
• Failure to meet eligibility criteria
• Errors in the application or supporting documentation
• Inability to pay the prevailing wage for the position
• Failure to demonstrate exceptional ability or skills

By thoroughly examining the denial notice, you can pinpoint the exact issues that led to the denial. This understanding is vital for deciding whether to refile, appeal, or explore alternative immigration options. Identifying the specific grounds for denial will help you address the deficiencies in your case and strengthen your future applications.

Option 1: Refile (Reapply with a Stronger Case)

There is no limit to how many times you can file Form I-140. If you choose to refile, you must take the denial reasons into account and strengthen your case.

How to Reapply Effectively

• Fix previous errors: Carefully read the denial notice. If a missing document led to the denial (e.g., academic transcript), include it this time. Ensure the petitioning employer addresses the reasons for the initial denial and includes all required evidence and information accurately.
• Add more evidence: If USCIS said you didn’t prove extraordinary ability, submit letters of recommendation, awards, media mentions, or proof of impact.
• Avoid copying your first petition: Don’t just resubmit the same package with a few tweaks. Show that you’ve addressed USCIS’s concerns thoroughly.
• Update outdated documents: Check for expired forms or financial documents and replace them with current versions.
• Include a completed form: Make sure to submit the completed form along with all supporting materials and fees within the specified timeline to effectively initiate the appeal process with USCIS.

Pro Tip: Include a cover letter summarizing the key changes and improvements in the new submission.

Download USCIS Form I-140: USCIS Form I-140 Official Page

Option 2: Appeal the Denial

If you believe the denial was in error, you can file an appeal with the Administrative Appeals Office (AAO).

Key Appeal Details

• Who can appeal? Usually, the employer (petitioner) must file the appeal—not the employee (beneficiary).
• Deadline: You must file Form I-290B within 30 calendar days from the date of denial (or 33 days if received by mail).
• Cost: $675 (as of April 2025)
• Processing time: 6 months or more
• Ensure to include all evidence that was previously submitted along with any new evidence when filing an appeal. This thoroughness can improve the chances of a successful outcome.

Appeal form and info: Form I-290B: Notice of Appeal or Motion

What Happens During an Appeal

• AAO reviews whether USCIS made an error in interpreting the law or facts.
• You may submit additional evidence or legal arguments to support your case.

Note: Filing an appeal does not automatically stop your clock if your visa status is expiring. You must maintain your lawful status separately.

Option 3: File a Motion to Reopen or Reconsider

Instead of a full appeal, you might want to file a motion to reopen (based on new evidence) or motion to reconsider (based on legal error).

These are also filed using Form I-290B, but:

• Motion to Reopen: Must be based on new facts or documentation that wasn’t available earlier.
• Motion to Reconsider: Argues that USCIS misapplied the law or policy.

Each motion is considered on its own merits, so it is crucial to address the reasons for the initial denial and ensure that all required evidence and information are accurately included in the new submission.

Option 4: Explore Alternative Immigration Options

If your I-140 continues to be denied—even after appeals—there are other immigration routes you might qualify for.

Consider These Alternatives:

• Family-based Green Card: If you have a U.S. citizen or green card holder spouse, parent, or child.
• EB-2 National Interest Waiver (NIW): For individuals with advanced degrees or exceptional ability contributing to the national interest.
• Diversity Visa Lottery: Apply through the State Department
• Asylum or Humanitarian Relief: If you fear persecution in your home country.

Each option has different requirements, so speak with a qualified immigration attorney to evaluate your eligibility.

Option 5: Maintain or Change Your Status While Exploring Options

If your I-140 is denied while you’re already in the U.S., it’s vital to maintain your legal status.

Strategies to Stay in Status

• Extend your current nonimmigrant visa (e.g., H-1B, L-1, O-1)
• Switch to another nonimmigrant status like B-2 (visitor) or F-1 (student)
• Apply for a change of status before your I-94 expires

Check I-94 expiration and travel history

If your visa expires, you may begin accruing unlawful presence—which can lead to bars on reentry.

Option 6: Return to Your Home Country (Temporarily or Permanently)

In some cases, it may make sense to step back from the process and regroup from abroad.

• Consider reapplying with a new employer after gaining experience or credentials.
• Use this time to explore international career opportunities.
• Keep an eye on changes in U.S. immigration laws or policy shifts that may help your case later.

Impact of Denial on Immigration Status

A denial of an I-140 petition can have significant implications for the beneficiary’s immigration status.

Effect on Beneficiary’s Status

A denial of an I-140 petition can affect the beneficiary’s immigration status in several ways:

• If the beneficiary is in the United States on a non-immigrant visa, such as an H-1B or L-1, the denial of the I-140 petition may not immediately affect their status. However, it may impact their ability to extend their stay or change their status in the future.
• If the beneficiary is outside the United States, the denial of the I-140 petition may prevent them from entering the country or obtaining a visa.
• If the beneficiary has filed an application for adjustment of status (Form I-485), the denial of the I-140 petition may affect their eligibility for a green card.

Given these potential impacts, it’s essential to consult with an experienced immigration attorney to understand the specific implications of a denial on your immigration status. An attorney can help you navigate the complexities of your situation, explore your options, and determine the best course of action to maintain or adjust your status.

Talk to an Immigration Attorney

Immigration law is complex. Even if you filed the original petition without a lawyer, now is the time to consult an experienced immigration attorney.

An attorney can help you:

• Analyze the denial notice
• Decide whether to appeal, refile, or shift strategies (e.g., pursue an EB-2 NIW instead of EB-1)
• Ensure you maintain legal status in the U.S.
• Prepare stronger documentation for future filings

Find a licensed immigration lawyer near you:
AILA Immigration Lawyer Search Tool

Maintaining Your Immigration Status

If you are in the U.S. on a nonimmigrant visa (like H-1B or F-1), you must continue maintaining lawful status while deciding your next steps.

Important tips:

• Do not overstay your visa if your I-140 is denied.
• If you were working under H-1B and your status is at risk, ask your employer to file an extension or new petition.
• Consider switching to a different legal status (such as B-2 visitor visa) if your work status is expiring and you’re exploring options.

USCIS Guide:
Changing or Extending Nonimmigrant Status

EB-2 Denials:  Special Concerns

The EB-2 Category includes the following subcategories:

Where Denials Happen in the EB-2 Process

The EB-2 process can include multiple stages, each with its own risks for denial:

1. PERM Labor Certification (unless you apply under National Interest Waiver)
2. Form I-140 Immigrant Petition
3. Adjustment of Status (Form I-485)
4. Work Authorization (I-765) & Travel Permits (I-131)

Let’s break down the most common issues.

EB-2 Approval Trends and Denial Rates

The EB-2 green card is for individuals with advanced degrees or exceptional ability in science, business, or the arts. Approval rates are generally high, with most denials stemming from preventable issues.

EB-2 I-140 Petition Approval Rates

Note: Applicants from India and China often face longer wait times due to high demand, but approval criteria remain the same.

Learn more: USCIS I-140 Petition Information

PERM Labor Certification Denial (If Not Filing NIW)

To sponsor you for an EB-2 visa (unless filing NIW), your U.S. employer must first obtain a PERM Labor Certification from the Department of Labor (DOL). This confirms that:

• No qualified U.S. worker is available for the role.
• The employer will pay the prevailing wage.

Top Reasons for PERM Denial

• Insufficient recruitment efforts: Employers must advertise the job in specific places, like Sunday newspaper ads, job boards, and the state workforce agency.
• Improper job descriptions: Descriptions that are too vague, overly restrictive, or inconsistent with the position can trigger denial.
• Inconsistent information on ETA Form 9089: Mistakes in dates, job locations, or wages can invalidate the petition.
• Failure to respond to audits: Employers must respond to DOL inquiries within strict deadlines.
• Inadequate documentation: Proof of advertising, recruitment steps, and prevailing wage determinations must be organized and complete.

Learn About PERM Labor Certification

National Interest Waiver (NIW) Denial

Applicants who qualify for an NIW can bypass the labor certification stage and self-petition. But these petitions must meet a three-prong legal test:

1. The proposed endeavor must have substantial merit and national importance.
2. The applicant must be well-positioned to advance the endeavor.
3. Waiving the job offer and labor certification must benefit the U.S.

Common NIW Denial Reasons

• Failure to prove national significance of your field
• Weak documentation of exceptional ability
• No clear benefit to the U.S. from waiving labor certification
• Generic or unsupported recommendation letters
• Mismatched or outdated credentials

NIW Guidance from USCIS

I-140 Petition Denial (Core EB-2 Stage)

Whether you file with an employer or as a self-petitioner under NIW, USCIS requires Form I-140 to establish eligibility. Denials at this stage are often due to documentation or eligibility errors.

Top I-140 Denial Reasons

Common Myths About EB-2 and NIW

Myth 1: If I receive an EAD (work authorization) and travel permit after filing my I-485, I’m guaranteed approval.
Reality: USCIS often approves EADs before adjudicating the I-140 or NIW. If the I-140 is denied, your work and travel authorization will be revoked.

Myth 2: A degree and years of experience automatically qualify you for an NIW.
Reality: You still need to pass the three-prong test showing national impact and your unique ability to contribute to the field.

I-140 Denial FAQ: Common and Complex Questions

1. What is Form I-140, and why is it important?

Form I-140 is the Immigrant Petition for Alien Worker, filed by a U.S. employer to sponsor a foreign national for a green card based on employment. It is a critical step in most employment-based green card categories (e.g., EB-1, EB-2, EB-3).

2. What are the most common reasons USCIS denies I-140 petitions?

• Failure to demonstrate the petitioner’s ability to pay the proffered wage
• Insufficient evidence the beneficiary meets the education/experience requirements
• Fraud or material misrepresentation
• Issues with the validity of the labor certification (PERM)
• Inconsistencies or errors in the submitted forms or supporting documents
• Lack of a bona fide job offer or employer withdrawal
• Incorrect classification (e.g., filing under EB-2 when EB-3 is appropriate)

3. Will USCIS provide a written explanation if my I-140 is denied?

Yes. You will receive a formal Notice of Decision outlining the reasons for denial.

4. Can I appeal a denied I-140 petition?

Yes. You may file an appeal with the Administrative Appeals Office (AAO) within 30 days of the decision (or 33 days if the denial was mailed). You may also file a motion to reopen or motion to reconsider with USCIS.

5. What is the difference between an appeal, a motion to reopen, and a motion to reconsider?

• Appeal: You request a higher authority (AAO) to review the decision.
• Motion to Reopen: You present new facts or evidence that were not available at the time of the decision.
• Motion to Reconsider: You argue that USCIS made an error in applying the law or policy, based on the same evidence already submitted.

6. What if the I-140 was denied due to the employer’s inability to pay the offered wage?

You may submit additional financial evidence showing the employer had the ability to pay the wage from the priority date onward, such as:

• Tax returns
• Annual reports
• Audited financial statements
• W-2s or pay stubs for the beneficiary

7. Can I file a new I-140 petition after a denial?

Yes. A new petition can be filed, especially if you have corrected the issues that led to the previous denial. However, USCIS may consider previous denials when reviewing the new petition.

8. Will my priority date be lost if my I-140 is denied?

If the petition was not approved, the priority date is generally not retained. However, if a previous I-140 was approved, you may be able to retain that priority date when filing a new petition.

9. What happens if my I-140 is denied while I’m on an H-1B visa?

You may lose eligibility for H-1B extensions beyond the 6-year limit. If your underlying H-1B time is nearly exhausted, you must quickly act to preserve your status, switch to another visa, or prepare to depart the U.S.

10. Can I remain in the U.S. if my I-140 is denied and I’m out of status?

No. Once the I-140 is denied and you are out of status (e.g., OPT expired, H-1B maxed out), you are generally accruing unlawful presence, which can trigger bars to reentry if you stay too long.

11. What if USCIS denied the I-140 due to fraud or willful misrepresentation?

This is very serious. A fraud finding can lead to permanent inadmissibility under INA §212(a)(6)(C)(i). You should consult with an experienced immigration attorney immediately.

12. Can I transfer my I-140 to a new employer if it was denied?

No. Only approved I-140 petitions can serve as the basis for portability under AC21 (American Competitiveness in the 21st Century Act). A denied petition cannot be transferred or ported.

13. Can I refile with a different employer if my I-140 was denied?

Yes. A new employer can file a new PERM and I-140 for you, but you may lose your priority date unless a previous I-140 was approved.

14. Can I sue USCIS if I believe the denial was unfair?

In limited cases, yes. You may file a lawsuit in federal court (under the Administrative Procedure Act), but you must usually exhaust administrative remedies first (e.g., motions, appeals).

15. How long does an I-140 appeal or motion take?

• Appeals to the AAO: Typically take 6–12 months, though some may take longer.
• Motions to reopen/reconsider: Usually processed within 3–6 months, but this can vary.

16. Can premium processing speed up a motion or appeal?

No. Premium processing is only available for initial I-140 filings or re-filings—not for appeals or motions.

17. If my I-140 is denied, is my underlying PERM labor certification still valid?

Not necessarily. A PERM certification is tied to the original job offer and sponsoring employer. If USCIS found issues with the PERM (e.g., fraud or invalidity), it may be considered invalid going forward.

18. Can I refile using the same PERM labor certification after denial?

Possibly. If the PERM is still valid (not expired or revoked), you may refile another I-140 with improved documentation. But note: PERM is valid for only 180 days after certification.

19. Can my spouse and children stay in the U.S. if my I-140 is denied?

Only if they have independent status (e.g., spouse has H-1B or student visa). If they are dependents (H-4, L-2) and you lose status, they likely will too.

20. What happens to my pending I-485 if my I-140 is denied?

Your Form I-485 (Adjustment of Status) will be automatically denied if it was based on the I-140 that was denied.

21. Can I refile both I-140 and I-485 after denial?

Yes, if you are still eligible, in status, and the employer is willing to support a new filing. Timing and eligibility are critical.

22. Can I downgrade from EB-2 to EB-3 after an I-140 denial?

Yes, if you have a qualifying PERM and meet the requirements for EB-3. A new I-140 would need to be filed. Downgrades are often strategic, especially in periods of visa bulletin retrogression.

23. Can an I-140 denial impact future immigration benefits or visas?

Potentially. USCIS may review previous denials and check for patterns of inconsistency, misrepresentation, or fraud. However, a denial alone does not bar future petitions unless fraud was involved.

24. What if USCIS denied the petition due to inability to prove the beneficiary met experience requirements?

You may refile with better evidence, such as:

• Detailed employer letters on company letterhead
• Paystubs or tax records
• Affidavits from coworkers or supervisors (with explanation)

25. What are uncommon or overlooked reasons for I-140 denial?

• Employer not in “good standing” with the state (e.g., license revoked)
• Lack of a valid job offer due to company closure or restructuring
• Issues with the company’s tax ID or legal existence
• Signature by an unauthorized person on the petition
• PERM misstatements conflicting with I-140 details
• Beneficiary was not physically present to sign G-28 or other forms

26. What should I do immediately after an I-140 denial?

• Read the Notice of Decision carefully
• Check if you’re still in valid immigration status
• Consult an experienced immigration attorney
• Decide quickly whether to file a motion, appeal, or refile
• Gather stronger evidence to address the denial’s reasoning

27. Does a denial affect my eligibility for future H-1B extensions beyond the 6th year?

Yes. H-1B extensions beyond 6 years require an approved I-140 or a pending green card process (e.g., 365+ days after labor certification filing). Denial may stop your eligibility unless corrected quickly.

28. Can an I-140 be denied even after USCIS sends a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)?

Yes. An RFE or NOID gives you a chance to respond, but USCIS may still deny the petition if your response is inadequate or unpersuasive.

29. Can a denied I-140 be reopened years later?

Only in rare cases. Generally, you must file a motion to reopen within 30 days of the decision. Late motions must show exceptional circumstances.

30. Should I change employers after an I-140 denial?

Only with great care. Changing employers after denial may reset your green card process entirely. You may lose priority dates and PERM validity, depending on the case.

Conclusion: Don’t Give Up—You Have Options

Why You Should Consult the Herman Legal Group After an I-140 Denial

Facing an I-140 denial can feel like your future is on pause—but you don’t have to face it alone. The Herman Legal Group has helped countless individuals and employers successfully navigate complex immigration setbacks. Here’s why we should be your first call:

• Deep Experience with I-140 Denials
  Our attorneys have decades of experience analyzing denial notices, filing successful motions, and crafting strong re-filings—even in the most challenging cases.
• Attorney Richard Herman Is a Nationally Recognized Immigration Authority
  Cited by The New York Times, USA Today, and NPR, Richard Herman leads a trusted legal team that understands how USCIS and immigration law really work.
• Customized Legal Strategies
  We don’t use cookie-cutter solutions. We review your denial in detail and create a personalized plan—whether that’s an appeal, motion, or fresh petition.
• Multilingual, Multicultural Team
  We speak your language—literally and culturally. Our team is fluent in multiple languages and understands the immigrant journey firsthand.
• Full-Service Representation Nationwide
  No matter where you are in the U.S. or abroad, we can represent you effectively. Virtual and in-person consultations available.
• Comprehensive Employment-Based Immigration Support
  We work directly with employers, HR teams, and individual beneficiaries to ensure that every angle—from PERM to I-485—is covered and aligned.
• Proven Track Record of Success
  From small businesses to Fortune 500 companies, we’ve helped clients turn denials into approvals.

Don’t risk your immigration future. A denial doesn’t have to be the end—it can be the start of a stronger case. Contact the Herman Legal Group today for a confidential consultation and find out how we can help you move forward.

Let’s turn your setback into a success story.

Need Legal Help?
Schedule a consultation with the Herman Legal Group to evaluate your I-140 case and explore your next steps.

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