In most situations, companies provide their employees with copies of I-140 and/or H-1B approval notices. These documents are important in a number of ways. With regard to the I-140 approval, this provides employees confirmation of their priority date as well as enables them to seamlessly extend their H-1B with current or future employers. With regard to the H-1B approval, this provides proof of lawful status and lawful presence in the United States. Additionally, the H-1B approval is typically needed to obtain or extend a driver’s license.

However, it is important to understand that employers are not legally obligated to share these approvals. We have seen are instances where a petitioning employer simply refuses to provide a copy of immigration approvals to their sponsored employees. In other instances, sometimes the approval notice has been misplaced or lost. In such cases, what options are available to obtain a copy of the I-140 or H-1B approval?

To begin with, it is essential to understand that I-140 and H-1B approvals are the property of the company. In any PERM-based I-140 as well as EB-1B (researchers/professors) and EB-1C (multinational managers/executives), the company is the Petitioner and they “own” all the documents related to those filings. In these instances, the employee is merely the beneficiary of the petition.

Consequently, the employee has no legal right to demand the employer provide a copy of the approval notice. Additionally, employees are generally not eligible to obtain a copy through the usual channels, such as filing Form I-824 (Application for Action on an Approved Application or Petition) with the U.S. Citizenship and Immigration Services (USCIS).

If the company is willing and able to provide a copy of the I-140 or H-1B approval notice, that is the simplest resolution to the problem. However, if the company has lost the approval notice and cannot provide a copy, the company may file an I-824 Application for Action on an Approved Application or Petition with USCIS, along with a filing fee of $590. Once that is accepted receipted by USCIS, our friends in the government typically take 12-24 months if not longer to provide the requested Form I-797 Approval Notice for the specific I-140 or H-1B petition.

Paying $590 to wait 12+ months for a document you’ve already paid for is both operationally absurd and organizationally inefficient. By filing the I-824, USCIS will provide an original approval of the document as a “secured” document on their fancy thick-stock paper. Going this route has its merit, but the goal can be accomplished much faster and at a much lower cost.

For both employers and employees, a Freedom of Information Act (FOIA) request is often the most cost- and time-effective avenue to obtain proof of I-140 or H-1B approval. The draw back? We don’t get an original notice but we get proof of the original notice. It is important to note that USCIS will not provide an actual copy of the Form I-797 approval notice through a FOIA request. Instead, to obtain the Form I-797, USCIS requires the $590 fee and a properly filed I-824 application.

A FOIA request will, however, provide a complete copy of the requested I-140 or H-1B filing, including all relevant notations made by USCIS, such as the receipt number, date of filing, priority date, and approval date. For instance, when placing a FOIA request for an approved I-140, USCIS is likely to provide a copy of the Form I-140 along with the supporting Labor Certification (PERM/ETA 9089) and any education or experience documentation submitted. On the first page of the I-140, USCIS will include the relevant notations indicating approval. Based on experience, this FOIA response documentation has been accepted by USCIS as having the same value as the original Form I-797 Approval Notice.=

Either the employer or the employee may file the FOIA request, as both parties are entitled to access this information. USCIS does not charge a fee for FOIA requests; it is a free service. In comparison to an I-824 application, FOIA is a far more efficient option. While the I-824 process can take over a year, FOIA requests are generally processed by USCIS within 4-6 weeks.

FOIA requests can be submitted using Form G-639 by mail, but USCIS has streamlined the process through their Freedom of Information Act (FOIA) Immigration Records System (FIRST), allowing for electronic submission. When placing a FOIA request, it is crucial to provide as much information as possible to help USCIS accurately identify and locate the requested file.

While FOIA requests can be made by paper filings with USCIS via Form G-639, USCIS has streamlined the operations through their Freedom of Information Act (FOIA) Immigration Records System (FIRST). When placing the FOIA request, it is important to provide as much information to USCIS as possible so that they may identify and locate the requested file.

By : Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.