Outline On Becoming A Permanent Resident Through Employer Sponsorship
: Labor Certification
This permanent residence
process is comprised of three phases: the labor certification, the immigrant
visa petition, and the final application for permanent residence. The
following is a summary of the major requirements in each of the three
phases. This outline is not a substitute for legal advice, which
will vary according to the circumstances of individual cases.
A "labor certification"
is certification by the United States Department of Labor that the employer
has tested the labor market (usually by means of a three-day newspaper
advertisements) and has found a shortage of qualified, available
U.S. workers for the job in question. Any
job requirement that is not considered a "normal" minimum requirement
of the occupation in question may need to be justified as a "business
of the employer. Also, if the employee is currently working for the sponsoring
employer, any requirements that the employee did not have on his or her
first day of work with the employer normally may not be listed as job
requirements. In addition to running two advertisements in a newspaper
of general circulation or in a professional journal, the employer must
post a Notice of Job Opening at the job site, and conduct additional
recruitment to show that it has searched for qualified U.S. workers.
A good faith effort to evaluate U.S. workers must be shown, and this
may involve interviewing some or all of the applicants. However, this
is only a test of the labor market -- it is never necessary for the employer
to discharge the sponsored employee as a result of
this process. Assuming that none of the applicants is a qualified and
available U.S. worker, final documentation of the recruitment efforts
is electronically filed with the Department of Labor. A successful application
documenting the results of the recruitment efforts and establishing that
qualified U.S. workers are not available will result in the issuance
of a labor certification.
The Department of
Labor has replaced the former RIR program with a new on-line process,
referred to as PERM, which is currently in effect. It
is similar to the RIR process except that it is done on-line (similar
to the current LCA process for the H-1B's) and takes
a few months instead of years. It requires that the employer have recruited
during the past six months, but instead of sending all of the recruitment
documents to the DOL the employer (or its attorney) will keep them
in a file and will attest that it has conducted the recruitment, subject
to an audit.
The second step in
the permanent residence process is the immigrant visa petition. Upon
receiving an approved labor certification, an immigrant
visa petition must be submitted by the employer to the CIS Regional
Service Center. The purpose of the immigrant visa petition is to establish
that the job in question has been certified by the Department of Labor
and that the beneficiary of the petition (the employee) has documents
showing that he or she meets all the minimum job requirements. The
immigrant visa petition also must establish which of the employment-based
immigrant categories the beneficiary qualifies to immigrate under,
and must establish that the employer has the financial resources to
pay the offered salary, and had such resources as of the time the labor
certification was initially filed. This step takes 3-12 months. When
of visa numbers occur, it can take months or years before a visa number
becomes available. A visa number must be available or "current" before
the green card application can be filed.
At this stage of the process it will also be necessary to decide on whether
you would like to do adjustment of status in the U.S or consular processing
in your home country.
is now possible to file the permanent residence application at the same
time (concurrently) that you file the I-140 immigrant visa petition
(assuming the visa number is "current"). This can be advantageous
because it allows green card "portability" (transfer to a
new employer without redoing the LC) sooner, allows
the employee to apply for work authorization, and may result in faster
on Choosing Where to Apply for the Visa
The Adjustment of
Status application consists of filing the green card, work authorization,
and travel document applications, and supporting documentation, and having
a medical exam performed in the U.S. It can take anywhere from 6-24 months
or more to adjudicate. You do not need to leave the U.S.
Consular Processing is done abroad, usually from the home country consulate
or country of last residence abroad. This usually entails submitting an
application to the consulate, obtaining police records from all places
of residence since the age of 16, and traveling abroad for a medical exam
and an interview (both the exam and the interview will be completed in
one trip). The processing time for consular processing can vary from consulate
to consulate, but in some cases it can be faster than doing adjustment
If you select consular processing abroad on the I-140 but then change
your mind when the I-140 is approved, you can simply proceed to file the
adjustment application as if you had originally selected adjustment of
status. However, if you select adjustment of status on the I-140 petition
and then want to do consular processing you will need to file a separate
petition to request the change. This will entail filing Form I-824 with
INS to request that the case file be retrieved from the National Visa
Center back to INS. This request can cause up to a one-year delay in the
immigrant visa application.
Another consideration is the “portability” or transferability
of the green card process, which can only be done in the adjustment context.
For example, if your I-485 adjustment application has been pending for
over six months, you may be able to seek and initiate new employment
without having to start the green card process again. (You would need
to have a new job offer in a similar position in the same industry as
your prior sponsorship.) Unfortunately this option is not
available to those who are doing their green card process from abroad
as "consular processing." In that case the green card sponsorship
will have to be undertaken anew by the new employer, after an H-1B transfer.
Yet another factor is whether the employee is running out of the six years
of H-1B time. If s/he is close to the five year mark, it may be better
to elect adjustment of status and apply for a “seventh year H-1B
extension,” which is available after the labor certification has
been pending for 365 days, and the six year H-1B limit has been reached.
Also, because of national security considerations, it may become more
difficult for individuals from certain countries to obtain immigrant visas
abroad, or there may be delays in connection with such applications. For
this reason adjustment of status may entail fewer problems.
Finally, any applicant who has status gaps, unlawful presence, any type
of law enforcement or immigration problem or questions about eligibility
for the green card, may want to consider adjustment over consular processing.
This is because, if there are problems, you can usually continue to work
while you iron out the problems and even appeal an adverse decision, if
you are still in the U.S. However, where you have chosen consular processing,
it is more difficult both logistically and legally to overcome a consular
Application For Permanent Residence
The third and final step towards permanent residence in the United States
is the employee's application for permanent residence. The employee's
eligible family members (spouse & minor unmarried children under
21) should also apply for permanent residence at this time. If the
applicant is in the United States, the adjustment application is submitted
to the Regional CIS "Service Center." An interview of the
applicant may be required, but is usually waived. If the employee is
applying abroad for an "immigrant visa" he or she and the
family members become permanent residents after receiving the immigrant
visa packet and subsequently being admitted at a U.S. port of entry.
Whether the employee is applying for "adjustment of status" in
the United States or for an "immigrant
visa" abroad, it will be necessary for the employer to confirm by
letter that it continues to offer the employee the job described in
the approved labor certification. The processing time varies from six
months to two years or more (for adjustment of status); and three to
eight months (for immigrant visa processing).
Processing Time Summary
Our current estimate of the processing time for a labor certification
is approximately three to six months. The
immigrant visa petition currently takes from three to twelve months.
If there is no backlog in the annual quotas on permanent residents, the
final permanent residence application can be filed concurrently along
with the immigrant visa petition (as soon as the labor certification
is approved) or it can be filed immediately after the immigrant visa
petition is approved, and the processing time abroad will be from three
to ten months (consular applications) or six to twenty-four months
(projected time for adjustment applications). Also, natives of certain
countries (such as the Philippines, the People's Republic of China and
India) are sometimes subject to a further wait due to those countries'
high use of their annual immigration quotas.
If you should have any questions regarding the content of this outline,
do not hesitate to give our office a call.