I-140 RFE · PERM Labor Certification

USCIS issued an RFE on your PERM based I-140 petition?

A certified PERM labor application does not automatically guarantee approval of the Form I-140. USCIS still reviews whether the petitioning employer and beneficiary satisfy the requirements of the immigrant classification and whether the I-140 is consistent with the certified job opportunity.

First identify which part of the PERM based petition USCIS is challenging.

A PERM based I-140 RFE can concern the employer, the beneficiary, the labor certification, the offered position, ability to pay, education, experience, priority date evidence, or inconsistencies among the documents submitted to the Department of Labor and USCIS.

The response should separate those issues rather than treating the RFE as a general request for more evidence. Each independent ground should be matched to the governing requirement, the original record and any supplemental evidence.

The certified PERM is the starting point. The I-140 response should be checked against the education, experience, skills, employer, location and job requirements actually certified.

Common PERM based I-140 RFE issues.

Beneficiary qualifications.

USCIS may question whether the beneficiary possessed the required education, experience, training or special skills required by the certified position.

Ability to pay.

The petitioning employer may need to establish its continuing ability to pay the proffered wage from the priority date.

Experience gained with the petitioning employer.

Questions can arise when qualifying experience was gained with the sponsoring employer and the prior position is not sufficiently different from the offered position.

Inconsistencies between PERM and I-140 evidence.

Job titles, duties, dates, wages, locations, employer information or beneficiary qualifications may not align across the certified labor application and supporting records.

Respond to the certified requirements, not to a reconstructed version of the case.

The response should preserve the integrity of the labor certification and demonstrate that the petition satisfies the requirements on which certification and the I-140 filing are based.

  • The certified ETA Form 9089 and relevant supporting records;
  • Detailed experience letters establishing the beneficiary’s qualifying employment;
  • Diplomas, transcripts, translations and credential evaluations where education is disputed;
  • Employer tax returns, audited financial statements, annual reports and wage records where ability to pay is disputed;
  • Evidence concerning the petitioning employer’s identity, ownership or business operations where USCIS raises an employer issue;
  • Documentation explaining any legitimate differences in job titles, corporate structure or employment records;
  • Evidence showing that required qualifications were obtained by the relevant date; and
  • A response matrix identifying each RFE finding, the governing requirement and the exhibits that answer it.

Review the PERM, I-140 and RFE side by side before obtaining new evidence.

A common mistake is to gather documents before identifying exactly what USCIS believes is inconsistent or insufficient. The response should first compare the RFE with the certified labor application and the I-140 filing.

New evidence should clarify and prove the original petition. It should not casually change the job requirements, beneficiary qualifications, employer, or other material facts on which the PERM and I-140 were based.

An unresolved PERM based I-140 issue can lead to denial and may require a different strategy afterward.

If USCIS finds that the beneficiary did not satisfy the certified minimum requirements or that the petitioner failed an independent eligibility requirement, approval of the labor certification alone does not cure the defect.

After a denial, the record should be reviewed to determine whether USCIS made a factual or legal error suitable for a motion or appeal where available, whether additional evidence can support reopening, or whether a new immigration filing is the better strategy.

Primary authorities8 C.F.R. § 204.5 and the classification specific requirements governing the Form I-140 petition, together with the certified labor application where labor certification is required.

Related I-140 notice and denial issues.

I-140 Ability to Pay RFEResponding when USCIS questions the employer’s ability to pay the proffered wage.I-140 Experience Letter RFEResponding when USCIS questions qualifying employment experience.I-140 Education Equivalency RFEResponding to degree, foreign equivalency and educational qualification issues.I-140 DeniedReview options after USCIS denies an immigrant worker petition.I-140 NOIRIssues that arise when USCIS proposes revocation of an approved I-140.