| Permanent Residency - Employment |
Law Offices of
Gilbert C. Ferrer PLLC
Gilbert C. Ferrer PLLC
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:
As described below, certain workers do not need to go through the Alien Employment Certification. These include:
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:
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:
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 Return to Home Page |
This Web Site is intended for general information purposes only. It is not intended to constitute a legal opinion
and must not be relied upon for any specific application. Be advised that immigration laws and policies change
frequently. In light of the complexities and changes in both the substance and interpretation of U.S.
Immigration Law, it is necessary to seek competent legal advice concerning the application of U.S. immigration
law to any particular individual.
© 2004-2009 Law Offices of Gilbert C. Ferrer, PLLC / All Rights Reserved.
and must not be relied upon for any specific application. Be advised that immigration laws and policies change
frequently. In light of the complexities and changes in both the substance and interpretation of U.S.
Immigration Law, it is necessary to seek competent legal advice concerning the application of U.S. immigration
law to any particular individual.
© 2004-2009 Law Offices of Gilbert C. Ferrer, PLLC / All Rights Reserved.
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