Permanent Residency -
Employment
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Updates on Green Card Process


Adjustment of Status - Since the passage of the AC21 amendments back in 2000,
a person who has an employment based I-485 application pending for more than
180 days has been able to change employers and still continue the validity of the
application so long as the new position was similar to the one underlying the original
petition.  Since the USCIS has still not published regulations implementing the
provisions of AC21, some issues have not been altogether clear.  One question has
been can the applicant change employers once the 180 days has been reached, if
the I-140 has not been approved yet.  The general assumption has been no, but the
statute is silent on that point.  It now appears that the regs will answer YES.  Yes, this
is contrary to previous USCIS indications, however a memorandun published by
USCIS, responded specifically that the I-140 need not be approved to "port" the I-
485 to a new employer.  


General summary of the permanent residency process
based on employment.

The time that a foreign worker may be employed is limited. In the case of H-1B visa it
is six years. For the L-1, it is either 5 or 7 years. In order to remain employed for a
longer period of time, in many cases it is necessary for the worker to become a
permanent resident of the United States (evidenced by the "Green Card"). The
permanent residency process can be commenced by either an immediate family
member of the foreign worker who is either a U.S. Citizen or permanent resident, or
by the foreign worker's employer.  See
Permanent Residency - Family Based for a
discussion of that process.



The Employment Based Process

This is either a two or three step process that ultimately leads to the issuance of a
"green card."

The three steps to the process are:

  •     Alien Employment Certification
  •     Immigrant Petition
  •     Adjustment of Status to Permanent Resident /Immigrant Visa Processing

As described below, certain workers do not need to go through the Alien
Employment Certification.  These include:

  • Individuals with extraordinary ability in certain fields of endeavor.
  • Executives or managers who worked in a foreign affiliate of the sponsoring U.
    S. employer for one year or more.  Persons in the U.S. in L-1A status may
    qualify.  See Non-Immigrant Visas.
  • Outstanding Researchers or Professors
  • Individuals working in an area of such importance to the US and who have
    such significant credentials, that it would be in the national interest to offer
    them permanent residency.

Individuals who fall into one of these categories can go straight to the Immigrant
Petition and, in some cases, the Adjustment of Status Application.


Alien Employment Certification

For most employees, the first step in the permanent residency process is the alien
employment certification (formerly known as the Labor Certification.) There are only
a few exceptions, as explained under the Immigrant Petition heading.  As of March
28, 2005, the alien employment certification will involve a new process, which has
been known as the PERM process.  Since traditional labor certifications and
Reduction in Recruitment applications will still be accepted until then, those types of
applications are discussed first.

In general, if a labor certification is required, the petitioning employer must file an
application with the appropriate state employment security agency, seeking
permission to offer a specific job to a specific alien worker.

As a general matter, the employer must establish, among other things:

  • That there are no U.S. workers available in the area of employment who meet
    the minimum requirements for the position.
  • That the minimum requirements for the job, as established by the employer,
    are reasonable.
  • That the alien worker meets these requirements.

Traditional labor certification- This type of application is no longer accepted
for filing.  However, applications filed before March 28, 2005 will still be
processed by Department of Labor.  
Recruiting for the position under
Department of Labor supervision proves lack of available U.S. workers.  After the
application is filed, an advertisement for the position is placed and any applications
submitted as a result are collected. The employer must screen candidates who meet
the minimum requirements for the position. While applicants who respond to the ad
and who qualify for the position do not need to be hired, it must be shown why they
are not suitable for the position.

Moreover, the Department of Labor requires that the beneficiary of the Labor
Certification be able to meet the minimum requirements for the position without
taking into account any experience gained at the sponsoring employer. This
requirement is imposed is in order to establish that this is a bona fide job opportunity
open to any available, qualified U.S. worker.



Reduction in Recruitment - This type of application is no longer accepted
for filing.  However, applications filed before March 28, 2005 will still be
processed by Department of Labor.  
As a response to extensive delays in the
traditional labor cert process, the Department of Labor established an expedited
procedure whereby the recruitment period can be waived if the employer can show
that a six-month pattern of "real world" recruitment for the position had already been
completed prior to the application. The recruitment period is expected to include the
six months just prior to the filing of the application. This procedure is referred to as
the Reduction in Recruitment process or "RIR."

Real world advertising can include internal postings, Internet based job postings,
college recruitment, etc. However, the Department of Labor has required that the
pattern of recruitment include print advertising in a national journal. The RIR
process, has also taken more than two years in some regions of the country,from
point of filing, currently takes approximately one year to eighteen months. Where
filing in RIR is possible, an RIR filing may be faster than a filing in the normal process
by over a year.

As noted, the employment certification process changed substantially as of March
28, 2005.  See
The PERM Process for a detailed description.  Once the process is
completed, and the application certified, the employer can then file form I-140,
Immigrant Petition for Alien Worker, the next step in the green card process.

The Immigrant Petition

The I-140 classifies a worker in an immigrant category.  In general they are:

  • First Category (EB-1) Priority Worker (see above)- Does not need an
    employment certification. The extraordinary ability petition does not need an
    offer of employment.
  • Second Category (EB-2) Workers with advanced degree or of exceptional
    ability. Requires employment certification unless a National Interest Waiver is
    granted.
  • Third Category (EB-3)  Skilled workers, professionals or other workers.
    Requires an employment certification.
  • Fourth Category (EB-4) Special Immigrants, including Religious Workers and
    Returning Residents.
  • Fifth Category (EB-5) Employment Creation.  Investor who invests
    $1,000,000 in a new commercial enterprise that employs 10 or more full time
    employees and actively manages business.)

The I-140 is filed with the regional service center of the USCIS governing the place
of employment or residence.  Once the petition is approved, the beneficiary can
either process for an immigrant visa in their home country or apply in the United
States for adjustment of status to permanent resident (the request for either process
is made on the I-140, but can be changed.


Adjustment of Status to Permanent Resident

Approval of the I-140 immigrant petition allows the employee in question to file an  
Application for Adjustment of Status to Permanent Resident (Form I-485). This is the
actual application for the "green card." An employee's immediate family has
derivative status and may apply for permanent residency at the same time.

It is also possible to file the I-140 simultaneously with the I-485 or to file the I-485
while the I-140 is pending so long as an Immigrant Visa number is available for the
application.  See
Preference Category Backlogs, below.

The I-485 is filed for each family member. It is the usual practice to also file the
applications for a work authorization card (I-765) and permission to travel (I-131) at
the same time. The work authorization card allows family members to work. The
permission to travel is only necessary if the worker's underlying visa (H-1B or L-1)
has expired or if a family member has worked (using a work authorization card)and
thereby invalidated their visa (e.g., H-4 does not allow work by dependents. L-2 does
allow work in specific situations.) In either case, the dependent would need
permission to leave and return to the United States, otherwise the Green Card
application is deemed abandoned.  In certain cases the worker can use his H-1B or
L-1 visa to travel.

Consular Processing Immigrant Visa Applications

Upon approval of the I-140, if the priority date is current, the beneficiary and his
dependents may process for an immigrant visa in their home country.  The National
Visa Center will initiate the process by communicating with the beneficiary of the I-
140 or their representative.  At the end of the NVC's process, they will send the file
to the designated consulate in the beneficiary's home country for scheduling of the
immigrant visa interview.


Preference Category Backlogs

All foreign nationalities are subject to quota limits on the number of immigrant visas
that can be issued to any one nationality in a given year. As of the October 2005
State Department Visa Bulletin, all chargability areas are subject to cut off dates in
the Third Employment Based category.   Also, Chinese and Indian nationals in the
EB-1 and EB-2 categories are also subject to backlog cut off dates. Such individuals
even with approved labor certifications and approved I-140s will have to wait until
their priority date (as set by the filing date of the Labor Certification or the I-140, if
no labor cert is required) is current.  If preference category quotas affect you, check
the U.S. State Department's Visa Bulletin, published monthly, to determine what
priority date is current for that month.   See also the current information on this
website at
Immigrant Visa News.

The Visa Bulletin is found at
State Department Visa Bulletin

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