Can someone with an approved I-140 be petitioned by their spouse for a green card and avoid waiting for visa availability from China or India?

This is a great and important question, especially for immigrants from high-demand countries like China and India, where green card backlogs can stretch for years. Let’s break it down in clear and simple terms.

What Is an I-140 and Why Does It Matter?

An I-140 is a form filed by a U.S. employer to petition for a foreign worker to become a permanent resident (green card holder). It’s part of the employment-based (EB) immigration process. Once approved, the I-140 shows that the U.S. government agrees the person qualifies for a green card based on their job skills.

However, just having an approved I-140 doesn’t mean the person can get a green card right away. There’s still a wait for a visa number to become available, especially for people born in countries like China or India, due to annual quotas.

Can a Spouse File a Green Card Petition Separately?

Yes. If the spouse is a U.S. citizen, they can file a Form I-130 petition and sponsor the person for a green card through family-based immigration. This is completely separate from the employment-based path.

Here's the Big Benefit:

• Immediate Relative Rule: Spouses of U.S. citizens are considered “immediate relatives,” meaning they do not have to wait for a visa number. Once the I-130 is approved, the green card process can move forward immediately—even if the person already has an I-140 approved and is stuck in a backlog.
  
  

So, yes, someone from China or India can potentially skip the long wait for their EB green card by being sponsored by their U.S. citizen spouse instead.

What If the Spouse Is a Green Card Holder?

If the spouse is a lawful permanent resident (green card holder) instead of a U.S. citizen, the process is slower. The applicant would fall into the F2A family-based category, which usually has shorter waits than employment-based categories for China and India—but still requires waiting for a visa number to become available.

As of mid-2025, the F2A category is typically current or has short wait times, but that can change depending on visa demand.

Can You Use Both Paths?

Yes. Some people pursue both paths to see which one moves faster. For example:

• Keep the I-140 in place in case your job path moves forward.
  
  
• Let your U.S. citizen spouse file an I-130 and start the family-based process too.
  
  

You’ll eventually choose which green card path to finalize depending on which becomes available first.

Important Notes:

• You must maintain lawful status in the U.S. during this process to be eligible for adjustment of status (green card processing within the U.S.).
  
  
• You can only adjust status when your priority date is current or you're in a visa category that’s immediately available (like being the spouse of a U.S. citizen).
  
  
• You should consult an immigration attorney to coordinate timing, especially if you are changing visa categories or statuses.
  
  

Does the Person With an Approved I-140 Need to Notify Their Employer or Do Anything to Relinquish the I-140 Once They Have an Approved I-130?

No, you do not need to notify your employer or cancel the approved I-140 if you choose to move forward with a green card through your U.S. citizen spouse instead.

Here’s why:

• The I-140 is a petition filed by the employer, not by you. It’s their request to sponsor you for permanent residence based on your job qualifications.
  
  
• If you choose not to use the I-140 path, you’re simply not taking the next step (like filing Form I-485 based on it). That doesn’t require any action or notification.
  
  
• There’s no formal process to “cancel” an I-140 on your end. Only the employer who filed it can withdraw it, and even then, it often stays on your immigration record.
  
  

You can just let the I-140 sit while you proceed with the family-based green card process. In fact, it might be smart to keep it as a backup in case anything changes with your family-based application.

How Does Switching Green Card Paths Affect Someone on an H-1B Visa?

If you're working in the U.S. on an H-1B visa, you're in a nonimmigrant, employment-based status. This means your legal stay and work authorization are tied to your job and employer.

Switching from an employment-based green card (I-140) to a family-based green card (I-130) does not automatically affect your H-1B visa status. Here's what you need to know:

Your H-1B Status Remains Valid

• Even if you pursue a green card through your U.S. citizen spouse, you can stay in H-1B status and keep working as long as your employer keeps sponsoring you.
  
  
• You’re allowed to have multiple green card processes at the same time. USCIS calls this “dual intent.”
  
  

You Can Still Adjust Status Through Marriage

• If your spouse is a U.S. citizen, you can file Form I-130 and Form I-485 (Adjustment of Status) together while on H-1B.
  
  
• Once your Form I-485 is filed, you can apply for work authorization (EAD) and advance parole (travel document) based on your family-based green card case.
  
  

What Happens If You Leave Your H-1B Job?

• If you quit or lose your H-1B job, you typically have a 60-day grace period to find another H-1B sponsor.
  
  
• If you’ve already filed your I-485 based on your spouse’s petition, you can stay in the U.S. even if your H-1B ends.
  
  
• Once you get your EAD, you can work without needing the H-1B anymore.
  
  

Should You Keep Your H-1B While Waiting?

It’s often a good idea to keep your H-1B status active until your green card is approved, just in case:

• Your I-130/I-485 case gets delayed or denied.
  
  
• You want to travel internationally—H-1B visa holders can reenter the U.S. more easily than those relying solely on advance parole.
  
  

Summary on filing a marriage petition after an approved I-140:

• If your spouse is a U.S. citizen, they can sponsor you for a green card and you do not have to wait for your I-140 priority date or visa availability.
• If your spouse is a green card holder, the wait time is usually shorter than the employment-based backlog for China or India—but still requires some waiting.
• It’s possible to pursue both employment and family-based green card options and use whichever becomes available first.
• No need to notify your employer or take any action on your I-140 if you’re going forward with a green card through your U.S. citizen spouse.
• You can let the I-140 remain active as a backup option.
• Always check your current visa status and work situation to make sure everything stays compliant.
• You can switch from an I-140 to an I-130-based green card without affecting your H-1B status.
• Your H-1B status remains valid as long as your job continues.
• Filing for a family-based green card gives you extra work and travel flexibility with EAD and advance parole.
• It’s smart to maintain your H-1B until your family-based green card is fully approved, if possible.

Do you need additional support with your marriage petition? 

If you’d like to get personal help with your green card options or strategy, schedule a free strategy session with an immigration attorney here: https://sisulegal.com/pages/booking-immigration-law-windsor-troy.