Hiring H-1B Employees: Why You Should Ask About Their I-140 Status First

The H-1B visa program is a fantastic resource allowing companies to hire talented professionals and build strong, diverse teams. Yet, navigating this program—especially when long green card waits come into play—can sometimes feel overwhelming for companies.

There's a crucial yet often overlooked step in hiring H-1B employees: asking about their I-140 status early on. Knowing this can make or break your overall immigration strategy.

First Things First: Why Ask About the I-140?

When you're looking to bring aboard an H-1B visa holder, you should always ask whether they already have an approved I-140 petition from a previous employer. Chances are if they do, they'll let you know up front. But why does this small piece of information matter so much?

Well, having an approved I-140 petition is more than just paperwork; it significantly impacts how long and seamlessly you can retain this employee.

Here's what an approved I-140 tells you:

• The employee successfully completed "step 1" of the green card process—Labor Certification (PERM).
• Their previous employer filed an immigrant petition (I-140), and it was approved.
• They're in line (likely a long one!) waiting for their priority date to become current so they can file for adjustment of status, the actual green card application (step 3).

In short, an approved I-140 gives you insights into where the prospective employee stands in the immigration queue—and how much runway you'll have to retain them.

Understanding the Priority Date and Country of Birth

Two key details to ask about are your prospective H-1B worker's country of birth and their priority date.

The reality is: the queue moves slower for certain countries, especially India (and to some extent China), as there's currently a significant backlog in these categories. For instance, as of May 2025, USCIS is only accepting adjustment applications from Indian nationals who have priority dates from January 2013 or earlier. People who started their green card process more recently can expect to languish in H-1B status even longer.

What does this mean for you practically?

• A recent priority date (2018, 2020, 2022) indicates a lengthy wait ahead—likely 10+ years.
• Longer waiting periods mean you can comfortably renew their H-1B extensions multiple times (in three-year increments) for potentially their entire career.

Does Your Company Need to Sponsor a New Green Card Application?

Almost always the short answer is yes. Why? The green card is tied specifically to a future job. Once your new employee is ready at the "front of the line," they'll need a current employer (you!) to confirm that the offered job still exists and to sponsor them through the adjustment of status process.

In most scenarios:

• You'll need to file a new Labor Certification (PERM) and a new I-140 petition—unless they plan to return to the employer who originally sponsored them.
• The original approved I-140 isn't lost; it's still valuable for H-1B extensions, but it doesn't allow them to complete adjustment of status unless that original job offer remains valid (rarely the case after they've left that employer).
• If your employee has an approved self-sponsored I-140 petition (under the National Interest Waiver), then you do not need to do anything but maintain their H-1B status. They will not need another labor certification and I-140 petition.

Bottom line: Be prepared to take proactive steps down the line by going through the PERM and I-140 processes again.

Don't Panic if the Original I-140 Was Withdrawn

Here's something that trips up many employers: previously approved I-140 petitions may show as "withdrawn" or "revoked." Don't panic! Usually, this has nothing to do with any wrongdoing or fraud by the employee. Many companies simply have a policy of withdrawing petitions once employees depart.

If an I-140 was approved for at least 180 days, a withdrawal doesn't affect your ability to continue to extend the employee's H-1B indefinitely. You just need to know that when they finally become eligible to adjust status, by that point, your company must have provided a fresh job offer with an approved labor certification application and I-140 petition.

When Should You Start the PERM Process Again?

Okay, so you've hired a terrific H-1B worker—when should you kick off their green card sponsorship again?

• Immediate Action Required: If your new hire isn't eligible for a full three-year H-1B extension, sound the alarm! Start their green card process immediately. This lack of eligibility suggests they're approaching their 6-year limit without a qualifying I-140 approved—and you'll need to move swiftly.
• Evaluate and Plan: If you were able to secure a three-year H-1B extension for your new hire, it’s reasonable to spend some time evaluating the employee's performance and deciding on their long-term position before proceeding with a Labor Certification. Aim to start the green card sponsorship clearly ahead of time to allow plenty of runway for processing.

It's becoming more common today for companies to use prompt green card sponsorship as a recruitment incentive. I'd encourage you to consider clear policies about sponsoring green cards, communicating openly with your hires, and working cooperatively with them to meet their family's immigration needs.

A Big Bonus for Families: the H-4 Spouse Work Authorization (EAD)

One huge reason why many H-1B professionals push actively toward achieving an approved I-140 quickly is because of their families.

Once your employee has an approved I-140 petition, their H-4 dependent spouse becomes eligible for an Employment Authorization Document (EAD). This can have a significant positive impact on their family's quality of life, as the H-4 spouse usually regains the freedom to pursue their own professional goals—often expanding career opportunities beyond even those available to the principal H-1B holder.

From a retention perspective, facilitating an H-4 spouse's return to the workforce via an approved I-140 can hugely boost employee morale, satisfaction, and overall productivity.

Final Thoughts

Navigating the complex world of business immigration certainly has its challenges, but don't be scared off when your top candidate has H-1B status.

Keep open dialogue with your H-1B prospective hires: ask about their immigration status, clarify mutual expectations, and get comfortable with starting new PERM/I-140 processes on time. By doing so, you'll position your company for long-term retention, stability, and global competitiveness.