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Although there are important exceptions, securing permanent residence on the basis of an offer of employment normally has three components. The first component involves filing for a labor certification (ETA-9089) from the Department of Labor (DOL). This certification establishes that the permanent employment of a foreign worker will neither displace qualified U.S. workers nor adversely affect wages and working conditions. The date this application is filed sets a worker's “priority date.” This is the day a worker ‘gets in line’ with all the other workers who are seeking permanent residence. This date is used by the U.S. Citizenship and Immigration Services (CIS) and the U.S. Department of State (DOS) to determine when a worker can file the final set of papers necessary to be granted permanent residence.
When the certification has been obtained from DOL, the sponsoring employer undertakes the second step by preparing and filing an I-140, Immigrant Visa Petition, with the CIS, documenting that the foreign worker is qualified for the position described in the approved labor certification and that the employer can afford to pay the salary offered to the foreign worker. The third and final component is either (1) preparing and filing an I-485 Application for Adjustment of Status for workers who are lawfully in the U.S. or (2) processing an immigrant visa application at an appropriate U.S. consulate. Consular processing is appropriate for workers who are outside the U.S. or for those who are either not eligible to adjust their status in the U.S. or who decide it may be faster to process abroad. Taking either of the steps for this third phase (filing for adjustment of status or scheduling an appointment for an immigrant visa at a U.S. consulate abroad) depends on whether an applicant’s priority date is “current” (available). (We will discuss the issue of priority dates in greater detail below.) Under a recent change in procedures, the Immigrant Visa Petition and the Adjustment of Status (steps 2 and 3) may in some cases be filed at the same time if the priority date is current. The decision on whether to take advantage of this concurrent filing will be made after the labor certification has been approved. If adjustment of status is available to the worker, it is almost always advantageous to file under the concurrent procedures.
With certain exceptions, foreign nationals who are sponsored for permanent residence in the U.S. must have a job offer that DOL has certified will neither displace qualified U.S. workers nor adversely affect their wages and working conditions. Some workers can bypass the labor certification process because they are performing work in “pre-certified” occupations like nursing or physical therapy. Others can bypass this step because their qualifications put them at the top of their fields and some, who are employed as teachers in institutions of higher education, can benefit from “special handling,” which uses recruitment previously done and provides other significant advantages. Generally, however, this is the route used by most workers to secure permanent residence in the U.S.
The position cannot contain any unduly restrictive requirements. Requirements that seem tailored to the foreign worker's specific education or experience will be rejected. Requirements that appear to be beyond those normal to the occupation, such as most foreign language requirements, will be reviewed very carefully, and an employer will have to prove a bona fide business necessity for each special qualification or requirement. Jobs that require two years of experience or training or more are considered to be skilled positions, but those requiring less than two years experience or training are considered unskilled, something that can result in significant delays in ultimate processing.
The standard for judging whether or not a labor certification may be approved is that no “qualified U.S. worker” who possesses the required minimum qualifications for the job is ready and willing to accept the position. The term “qualified U.S. worker” includes U.S. citizens and nationals, lawful permanent residents, as well as individuals granted asylum and refugee status.
The process requires that the employer test the market through extensive recruitment to determine whether qualified workers are available and willing to take position. If a qualified worker is found, the labor certification cannot be filed.
When the labor certification has been received, the immigrant visa petition (Form I-140) must be filed with the CIS within 180 days. The I-140 petition requires the employer to document that (1) DOL has certified the job offer; (2) the foreign worker is qualified for the position (by submitting pertinent educational credentials and letters of reference, depending on what the certification states is required for the position), and (3) the employer can afford to pay the offered wage (documented by tax records or, in some cases, a letter from the employer's chief financial officer). As noted above, we will have to present evidence that employer had the ability to pay the offered wage as of the time the labor certification was filed as well as when the I-140 is filed. A shortcoming at either time or any time in between can end the permanent residence case.
The worker may obtain permanent residence by either filing for adjustment of status in the U.S. or seeking issuance of an immigrant visa from a U.S. consulate abroad. Both of these steps depend on the worker’s “priority date” being “current” or available.
As we noted above, a worker secures a priority date when he or she files the initial paperwork for permanent residence. A priority date is secured by the filing of an application for labor certification with DOL, or, in cases where the labor certification is waived, by the filing of an immigrant visa petition with the CIS. Because there are generally more people who want to immigrate to the U.S. than can do so under the legal limits, a backlog develops each year, always spilling over into the next year, as people wait their turn to complete the process. The DOS moves the processing dates forward each month, announcing the dates of cases that it will accept in any given month for final processing. The dates are announced for each category and are further broken down by nationality for countries with high rates of immigration to the U.S.
Before a worker can file for adjustment of status or be issued an immigrant visa, the worker’s priority date will have to be available or current. If it is not current, the worker will have to wait to file the adjustment of status paperwork or to receive the immigrant visa at a U.S. consulate. This can cause significant problems if the available amount of time in H-1B nonimmigrant status is limited. Under certain circumstances, depending on when the case was initiated and its present stage, an employer may be able to extend the worker’s H status. Sometimes, however, this option is not available and workers have to leave the U.S. and wait to conclude their permanent residence case abroad.
If a worker’s priority date is current, he or she may file his or her application for Adjustment of Status (I-485). This application is intended to document that the worker is legally in the U.S. and is not excludable due to communicable disease, criminal convictions, etc. Workers who are eligible to file for adjustment of status can also secure employment authorization, allowing them to work while the process is concluded. Sometimes an adjustment case cannot be filed if the individual is not legally in the U.S. or if they have violated their status in some way.
The worker (and any family members who will be applying) will need to have a physical examination by a CIS approved physician. (This examination will assess health with specific statutory concerns in mind, e.g., TB, AIDS, whether the worker has had certain vaccinations, etc.) The worker (and family members who will be applying) will have to provide fingerprints, letters confirming employment, birth certificates, etc. We will provide more detailed information about these requirements at the proper time. No one should get a medical done without specific clearance from our office.
Once the I-485 application is filed with the CIS, neither the worker nor any family member may travel outside the U.S. without advance permission from the CIS unless they hold valid H-1B or L status. This is very important. We must be advised of all travel plans well in advance of any trips.
Once the CIS has finished its background check, determined that the application is complete, and verified that the employee’s “priority date” remains current, the CIS will either simply approve the case or schedule an interview at the local CIS District Office. If the priority date is not current, the file will be set aside and will be reexamined when the priority date becomes current again. Sometimes, the employee will have to update his or her fingerprints or medical examination before the case can be approved. The CIS will notify the individuals if this is necessary.
Once the case is approved, the worker may not receive his or her “green card,” i.e., Form I-551, the Permanent Residence Card, for several months. Owing to the significant delays in the processing of adjustment cases, Congress passed a law enabling some workers whose adjustment applications have remained undecided for 180 days, to undertake substantially similar employment with a new employer. Generally, workers should not change employers under this exception until after the underlying I-140 has been approved.
Immigrant visa processing through a U.S. consulate follows the general pattern of adjustment filings. Once the I-140 case has been approved, the DOS’s National Visa Center will send out a fee bill for the case. Once this is paid, certain paperwork is requested and the file is sent to the proper consulate for an interview. If the interview substantiates the offer of employment and that the worker is eligible for admission to the U.S., an immigrant visa is issued, and the worker becomes a permanent resident once he or she uses that visa to enter the U.S.
The one significant advantage of consular processing is the fact that while the consulate cannot issue the visa until the priority date is current, all preliminary processing can be completed beforehand. Adjustment filings cannot even be submitted to the CIS for processing until the priority date is current. There are other considerations to evaluate in selecting one route over the other, and we will review these with the employer and the sponsored employee closer to the time a decision must be made.
Our role is to advise and assist the employer and the sponsored employee in understanding and complying with the ever-changing laws and regulations, in light of the facts in the particular case being processed. This is a particularly important responsibility because many of the requirements for a successful labor certification application are counter-intuitive to “real world” employment recruitment. After all, the recruitment is for a “vacancy” that is filled with the foreign worker. We will help the parties to assess the true minimum requirements for the position, prepare a realistic and accurate statement of qualifications that meet the pertinent requirements, and ensure that recruitment is proper under the legal requirements. We will shepherd the employer and the foreign worker through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses and ensuring that the worker can document his or her qualifications for the position.
