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I-140 denied: what the regulations say about the appeal, a motion, the priority date and a pending I-485

8 CFR 204.5(n)(2) makes an I-140 denial in the main employment-based classifications "appealable to the Associate Commissioner for Examinations," which is the AAU route on Form I-290B ($800) within 30 days of service. 8 CFR 204.5(e)(3) says "A denied petition will not establish a priority date." A pending I-485 that rests on the petition is affected.

An I-140 is the immigrant petition that starts an employment-based green card. When one is denied, two people are affected differently: the petitioner, usually the employer, who has the right to challenge the denial, and the worker, whose green card path may depend on it. The regulations treat those two roles separately, and many of the questions people ask after a denial turn on that difference.

This page sets out what the regulations say as at 9 October 2026, from the eCFR: who files and pays, the grounds the evidence rules point to (ability to pay the wage, the labor certification and the classification-specific proof), the appeal and motion routes, the effect on the priority date, what happens to an I-485 that depends on the petition, and how a denial differs from a revocation. It does not explain why any particular I-140 was denied, whether to challenge it, or how to build a better petition. Those are legal judgments that need the denial notice and the case file. Only an attorney or a DOJ-accredited representative can advise on them.

Who files an I-140, and what it costs

The form and the filer are set by 8 CFR 204.5. A petition to classify a worker under section 203(b)(1), (2) or (3) "must be filed on Form I-140, Petition for Immigrant Worker," and "A separate Form I-140 or I-360 must be filed for each beneficiary, accompanied by the applicable fee" (204.5(a)).

Section 204.5(c) says who can file: "Any United States employer desiring and intending to employ an alien may file a petition for classification of the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act." But "An alien, or any person in the alien's behalf, may file a petition for classification under section 203(b)(1)(A) or 203(b)(4) of the Act (as it relates to special immigrants under section 101(a)(27)(C) of the Act)." So for most classifications the employer is the petitioner. For the extraordinary-ability category (203(b)(1)(A)), the worker may file for themselves.

The fees in the CFR as at 1 October 2026 are:

  • the I-140 filing fee, $715 (8 CFR 106.2(a)(11));
  • the Asylum Program Fee, $600, which must be paid with an I-140 and is $300 for a small employer and no fee for a nonprofit (106.2(c)(13));
  • optional premium processing, $2,965 for the employment-based classifications listed in 106.4(c)(11)–(18), with a 15-business-day timeframe for most and 45 business days for the multinational executive and manager category (203(b)(1)(C)) and for second-preference petitions that involve a national-interest waiver (106.4(e)(17) and (18)).

The 106.4 premium fees and timeframes can be adjusted, and USCIS decides which petitions are open to premium processing (106.4(g)). Check the USCIS fee schedule, G-1055, before paying anything.

What the evidence rules point to

The regulations do not list "reasons for denial" in a neat set. They set requirements, and a petition is denied when the record does not meet one. These are the requirements that most often matter, quoted from the rules. This is not a prediction of why any petition was denied.

A properly filed petition. 8 CFR 204.5(a) says a petition is properly filed only if it is accepted for processing under part 103; "Accompanied by any required individual labor certification, application for Schedule A designation, or evidence that the alien's occupation qualifies as a shortage occupation"; and "Accompanied by any other required supporting documentation."

Ability of the employer to pay. Section 204.5(g)(2): "Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements." For an employer with 100 or more workers, the director "may accept a statement from a financial officer of the organization." In appropriate cases, "additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service."

Proof of experience or training. 204.5(g)(1) requires evidence of qualifying experience or training in "the form of letter(s) from current or former employer(s) or trainer(s)" showing "the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received." If that is unavailable, "other documentation relating to the alien's experience or training will be considered."

Extraordinary ability. For the 203(b)(1)(A) category, 204.5(h)(3) requires "evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise," shown by a one-time major international award or at least three of ten listed types of evidence. The definition in (h)(2) is: "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." No offer of employment or labor certification is required (h)(5).

Outstanding professors and researchers. 204.5(i)(3) requires evidence of international recognition as outstanding (at least two of six types), at least three years of teaching or research experience, and an offer of a tenured, tenure-track or permanent research position. A labor certification is not required for that category.

Before a denial. USCIS may ask for more evidence first. Under 8 CFR 103.2(b)(8) a request for evidence can allow up to twelve weeks and a notice of intent to deny up to thirty days, with no extensions. See our pages on the request for evidence and the notice of intent to deny.

The appeal and the motion

Section 204.5(n)(2) is the denial rule for the main employment-based classifications: "The denial of a petition for classification under section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it relates to special immigrants under section 101(a)(27)(C) of the Act) shall be appealable to the Associate Commissioner for Examinations. The petitioner shall be informed in plain language of the reasons for denial and of his or her right to appeal."

The appellate body for that official's jurisdiction is described in 8 CFR 103.3(a)(1)(iv): "The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations." Under 103.3(a)(2)(i), "The affected party must submit the complete appeal including any supporting brief as indicated in the applicable form instructions within 30 days after service of the decision." The form is the I-290B, and the fee is $800 (8 CFR 106.2(a)(16)).

The denial notice is supposed to say where an appeal goes. 8 CFR 103.3(a)(1)(iii)(A): "When an unfavorable decision may be appealed, the official making the decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form." Follow the notice for the form and the office. Our page on Form I-290B explains the appeal and motion steps in detail. The short version of the rules that matter for an I-140:

  • Who may file. The affected party is "the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition" (103.3(a)(1)(iii)(B)). For an employer-filed I-140, the employer is the party. For a self-petition, the worker is.
  • The 45-day step. The office that denied the petition reviews the appeal first, and "Within 45 days of receipt of the appeal, the reviewing official may treat the appeal as a motion to reopen or reconsider and take favorable action" (103.3(a)(2)(iii)). Otherwise it is forwarded to the AAU.
  • The motion. A motion to reopen or reconsider is also filed on the I-290B within 30 days (103.5(a)(1)). A motion to reopen "must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence"; a motion to reconsider must show the decision "was based on an incorrect application of law or Service policy" and was "incorrect based on the evidence of record at the time of the initial decision" (103.5(a)(2)–(3)).
  • Summary dismissal. An appeal that fails "to identify specifically any erroneous conclusion of law or statement of fact" is summarily dismissed (103.3(a)(1)(v)).
  • Mail. If the decision was served by mail, 3 days are added (103.8(b)).
  • No stay. A motion does not "stay the execution of any decision in a case" (103.5(a)(1)(iv)).

An appeal or motion filed without a Form G-28 by an attorney or representative is treated as improperly filed, with no fee refund (103.3(a)(2)(v)(A)(2)).

The priority date after a denial

The priority date is the date that decides a person's place in the visa queue. Section 204.5(d) sets it: for a petition accompanied by an individual labor certification, it "shall be the date the labor certification application was accepted for processing by any office of the Department of Labor"; for a petition that does not require one, it is "the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with USCIS."

Section 204.5(e) says what a denial does to it. The key sentence is (e)(3): "A denied petition will not establish a priority date." Related rules:

  • A petition approved under section 203(b)(1), (2) or (3) "accords the alien the priority date of the approved petition for any subsequently filed petition" in those classifications for which the person may qualify. If there are several approved petitions, the person "shall be entitled to the earliest priority date" (204.5(e)(1)).
  • The priority date "may not be retained" if USCIS later revokes an approval for fraud or willful misrepresentation of a material fact, revocation or invalidation of the labor certification, or "A determination by USCIS that petition approval was based on a material error" (204.5(e)(2)).
  • "A priority date is not transferable to another alien" (204.5(e)(4)).

So the denial itself does not hand over a date, and a new petition is judged on its own record. How a refiled petition would interact with an earlier labor certification, or with the dates in the Visa Bulletin, depends on rules from other agencies and on the facts; see our page on how the Visa Bulletin works. A lawyer can answer that for the particular dates.

A new I-140. The regulations do not set a waiting period after a denial. A new petition means a new $715 fee, a new Asylum Program Fee and a new record. Ability to pay "at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence" (204.5(g)(2)) is judged again.

If an I-485 depends on the I-140

Many workers file the I-485 at the same time as the I-140, or while it is pending. 8 CFR 245.2(a)(2)(i)(B) allows this: "If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition." For any other classification, the beneficiary "may file the adjustment application only after the Service has approved the visa petition."

Because the I-485 relies on the petition, a denial of the I-140 puts the I-485 in question. The regulations do not run through every combination. Two rules help to frame the question.

  • A valid offer and a valid petition. 8 CFR 245.25(a): an alien with a pending adjustment application based on an approved I-140 "must have a valid offer of employment based on a valid petition at the time the application to adjust status is filed and at the time the alien's application to adjust status is adjudicated, and the applicant must intend to accept such offer of employment."
  • Job portability. Under INA section 204(j) and 245.25(a)(2), a person whose I-485 "has been pending for 180 days or more" may rely on a new offer "in the same or a similar occupational classification," provided the qualifying petition "Has already been approved" or "Is pending when the beneficiary notifies USCIS of a new job offer 180 days or more after the date the alien's adjustment of status application was filed, and the petition is subsequently approved." For a petition that was pending, adjudication is "without regard to the requirement in 8 CFR 204.5(g)(2) to continuously establish the ability to pay the proffered wage after filing," and "will be approved if it was eligible for approval at the time of filing and until the alien's adjustment of status application has been pending for 180 days."

These are descriptions of what the rule says, not an assessment of any person's I-485. The effects of an I-140 denial on an I-485, on work permission based on the pending I-485, and on any status the person holds depend on dates and facts. A lawyer or accredited representative should answer them. Our page on an I-485 denial explains the separate rules on that application.

Denial, withdrawal and revocation are different

Three outcomes get confused because they all end a petition.

Denial is a refusal of a petition that was not yet approved. The routes are in 204.5(n)(2) and 103.3 as described above.

Revocation on notice applies to an approved petition. Under 8 CFR 205.2(a), an authorized officer "may revoke the approval of that petition upon notice to the petitioner." The petitioner "must be given the opportunity to offer evidence in support of the petition ... and in opposition to the grounds alleged for revocation" (205.2(b)). The appeal period is shorter: "The petitioner or self-petitioner may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation" (205.2(d)).

Automatic revocation under 8 CFR 205.1 applies in listed circumstances. For petitions under section 203(b) the list includes invalidation of the labor certification under 20 CFR Part 656, the death of the petitioner or beneficiary, a written withdrawal by the petitioner less than 180 days after approval unless an associated I-485 has been pending 180 days or more, and termination of the petitioning employer's business less than 180 days after approval, with the same I-485 exception (205.1(a)(3)(iii)). Where an employment-based petition is withdrawn, "the job offer of the petitioning employer is rescinded and the alien must obtain a new employment-based preference petition ... unless eligible for adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25."

If a person is told their I-140 has been "denied," the first job is to check which of these the notice describes, because the deadline and the next step depend on it.

Where I-140 denial steps go wrong, from the rules

These follow from the text above.

  • Missing the 30-day period for an appeal or motion (103.3(a)(2)(i), 103.5(a)(1)(i)), or the 15-day period for a revocation appeal (205.2(d)).
  • The wrong person filing. The beneficiary is not an affected party (103.3(a)(1)(iii)(B)).
  • Appealing without saying what was wrong. An appeal that does not "identify specifically any erroneous conclusion of law or statement of fact" is dismissed.
  • Filing without a G-28 when a representative signs.
  • Assuming a denial keeps a priority date. 204.5(e)(3) says it does not.
  • Treating the I-485 as independent of the petition it relies on (245.2(a)(2)(i)(B), 245.25(a)).
  • Not knowing the difference between a denial and a revocation.
  • Relying on a notario or consultant. Under 8 CFR 292.1(e), only the people on that list may represent others before USCIS.

Who can help. The petitioner is often an employer, and the worker and the employer may need separate advice, because their interests differ. Our page on who can give immigration advice sets out the lists. For the money side of an H-1B or other employer filing, see H-1B employer fees.

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Questions people ask

Can an I-140 denial be appealed?

Yes. 8 CFR 204.5(n)(2) makes the denial of a petition under section 203(b)(1), (2), (3) or (4) (as it relates to certain special immigrants) "appealable to the Associate Commissioner for Examinations." That is the Administrative Appeals Unit route on Form I-290B within 30 days of service (8 CFR 103.3(a)(2)(i)). The denial notice states the appellate jurisdiction and furnishes the form (103.3(a)(1)(iii)(A)).

Who can file the appeal, the employer or the worker?

The affected party. 8 CFR 103.3(a)(1)(iii)(B) defines it as the person "with legal standing in a proceeding" and says it does not include the beneficiary of a visa petition. For an employer-filed I-140 that is the employer. Where the worker self-petitioned (for example under section 203(b)(1)(A)), the worker is the petitioner.

Do I keep my priority date if my I-140 is denied?

8 CFR 204.5(e)(3) says "A denied petition will not establish a priority date." A petition that is approved gives the person its priority date for later petitions in the same group of classifications (204.5(e)(1)), subject to the revocation exceptions in 204.5(e)(2).

Can the employer file a new I-140 after a denial?

The regulations set no waiting period after a denial. A new petition needs a new $715 fee plus the Asylum Program Fee (8 CFR 106.2(a)(11), (c)(13)) and is judged on its own record, including the employer's ability to pay the wage (204.5(g)(2)). Whether to refile is a legal judgment.

What happens to my I-485 if the I-140 is denied?

The regulations do not give one answer. An I-485 based on an employment-based petition needs a valid petition and offer of employment at filing and at adjudication (8 CFR 245.25(a)), and job portability applies only on stated conditions after the I-485 has been pending 180 days. Ask a lawyer or accredited representative about the dates in your case.

What is the difference between an I-140 denial and a revocation?

A denial refuses a petition that was not yet approved and is appealed within 30 days. A revocation withdraws an approval that was already granted. Revocation on notice has a 15-day appeal period (8 CFR 205.2(d)), and automatic revocation applies in the circumstances listed in 8 CFR 205.1.

Sources

Last checked 2026-10-09.

Related guides

  • Form I-290B: how appeals and motions on a USCIS decision work under 8 CFR 103.3 and 103.5 — Form I-290B is the notice of appeal or motion for USCIS decisions that the Board of Immigration Appeals does not review. The fee is $800 (8 CFR 106.2(a)(16)) and the deadline is 30 days from service of the decision (8 CFR 103.3(a)(2)(i) and 103.5(a)(1)(i)). Some decisions, such as an I-485 denial or an I-130 denial, are handled differently.
  • USCIS Request for Evidence (RFE): the deadline, your options and what happens if you miss it — A Request for Evidence gives a date to respond, and under 8 CFR 103.2(b)(8)(iv) that response period can never be longer than twelve weeks. Additional time "may not be granted". The regulation lets the applicant send everything, send part and ask for a decision on the record, or withdraw.
  • Notice of Intent to Deny (NOID): the 30-day limit, how it differs from an RFE and what comes next — A Notice of Intent to Deny names the reasons USCIS proposes to deny a case and sets a response date that cannot be more than thirty days away. The regulation says additional time "may not be granted" (8 CFR 103.2(b)(8)(iv)). The options are a full response, a partial response with a request for a decision on the record, or withdrawal.
  • I-485 denied: what the regulations say about appeals, motions, renewal and your work permit — 8 CFR 245.2(a)(5)(ii) says "no appeal lies from the denial" of an adjustment application. The regulations leave two routes: a motion to reopen or reconsider on Form I-290B within 30 days ($800), and, for an applicant who is not an arriving alien, renewing the application in removal proceedings. A work permit has its own validity date and its own revocation rule.
  • USCIS premium processing fees from 1 March 2026 — Since 1 March 2026 the premium processing fee on Form I-907 is $1,780, $2,075 or $2,965 depending on the category (8 CFR 106.4(c)). USCIS must act within 15, 30 or 45 business days or refund the fee, except where it opens a fraud investigation. The fee cannot be waived and must be paid in addition to the filing fee.
  • PERM labor certification: the steps before the I-140, from 20 CFR 656 and the Department of Labor — PERM is the Department of Labor process an employer must complete before filing an I-140 for most employment-based green cards. The order is fixed: a prevailing wage determination, recruitment and a notice of filing, then the ETA Form 9089, then the I-140 within 180 days of certification. Recruitment is done by the employer, and the rules bar the employer from seeking payment for it.
  • EB-2 national interest waiver: what the statute, the regulation and USCIS's three-prong test say, and what it costs — An EB-2 national interest waiver (NIW) lets a person who qualifies for the EB-2 category as an advanced-degree professional or a person of exceptional ability ask USCIS to waive the job offer and labor certification, and file the I-140 as a self-petitioner. USCIS applies a three-prong test: substantial merit and national importance, well positioned to advance the endeavor, and on balance a benefit to waive the job offer. The I-140 fee is $715 plus a $600 Asylum Program Fee, and premium processing is $2,965 with a 45-business-day timeframe.
  • How to read the Visa Bulletin and priority dates — The Department of State's monthly Visa Bulletin lists cut-off dates by preference category and country of chargeability. A visa is available when your priority date is earlier than the cut-off date, or the bulletin shows 'C'. Immediate relatives of US citizens are not subject to the queue. This page explains how to read the bulletin; it does not quote current dates or predict movement.
  • Who can legally give US immigration advice? — Attorneys in good standing and DOJ-accredited representatives of recognized non-profits can advise and represent you; a few narrow categories can appear unpaid. Notaries, notarios and immigration consultants cannot give immigration legal advice. Form preparers may only fill in blanks for a nominal fee.