Processing Procedures for Permanent Visas through Employment
- PERM Labor Certification Processing
- Filing of I-140 Immigrant Visa Petition
- Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
- Adjustment of Status (Form I-485)
- Consular Processing of Immigrant Visa
- FAQs for Processing Procedures for Permanent Visas through Employment
The most common way an employee becomes a U.S. lawful permanent resident (green card holder) is through employer sponsorship. This requires most employers to conduct a labor market test to determine if there are any qualified U.S. workers. This process is commonly referred to as PERM Labor Certification.
Most workers in the EB-2 category and all workers in the EB-3 category require the issuance of a PERM Labor Certification from the U.S. Department of Labor (DOL) before the filing of an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS). The issuance of a labor certification is a statement by the DOL that there are no U.S. workers available for the proposed position and the proposed employment will not harm the wages and working conditions of other U.S. workers.
Other categories waive the PERM Labor Certification and allow a person to immediately file a Form I-140, Immigrant Visa Petition. Click here to skip directly to Filing of an I-140 Immigrant Visa Petition.
PERM Labor Certification Processing
There are four steps involved in securing U.S. lawful permanent residence via PERM Processing from the Labor Market test until issuance of the green card.
- The Labor Market Test
- Filing Form ETA 9089 PERM Labor Certification Application
- Filing Form I-140 Immigrant Visa Petition
- Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
The Labor Market Test
Under PERM Labor Certification rules, an employer must conduct a test of the local labor market where the job, or proposed job, is located. DOL rules mandate the following labor market test:
- Obtain a Prevailing Wage Determination from the State Workforce Agency;
- Publication of an advertisement in two (2) Sunday editions of a local major newspaper;
- Posting of a notice at the work site for ten (10) consecutive business days; and
- Posting of a 30 day job order with the State Workforce Agency.
If the position is professional, as defined in the DOL regulations, three additional steps from the following additional ten options are required:
- Recruitment at Job fairs;
- Posting a Notice on the employer’s web site;
- Posting an advertisement on a job search web site other than the employer’s;
- On-Campus Recruitment;
- Publication of an advertisement in a trade or professional publication specific to the industry;
- Posting a job opening with a private employment firm;
- Posting a notice at a campus placement office;
- Publication of notice using the employer’s in-house incentive referral program;
- Publication of an advertisement in a local or ethnic newspaper; or
- Publication of an advertisement on radio or television.
Filing Form ETA 9089 PERM Labor Certification Application
After the labor market test is completed, the employer electronically files a Form ETA 9089 Application for Permanent Employment Certification with the DOL. The date an application is filed is the employee’s “Priority Date.” The priority date is utilized to determine a person’s place in the immigration quota line and when an immigrant visa number can be allocated to an individual.
During review of a PERM application, if the DOL wishes to audit an application, the DOL gives notice to employers to provide the requested audit documentation within 30 calendar days. Upon receipt of the requested audit documents, DOL continues processing.
When the PERM application is approved, the DOL issues a certified Form ETA 9089 which is mailed to the attorney of record or the employer. Upon receipt of a certified Form ETA 9089, an employer must file an I-140, Immigrant Visa Petition and all supporting evidence with the USCIS within 180 days of the DOL certification.
Filing of I-140 Immigrant Visa Petition
A person must file a Form I-140, Immigrant Visa Petition to commence the process of applying for a permanent visa though employment. As mentioned previously, some persons must first secure a PERM Labor Certification, mentioned above, before the filing of a Form I-140. Others may immediately file an I-140 petition without a PERM Labor Certification.
The Form I-140, with all supporting evidence, is filed with the appropriate USCIS Service Center. In addition, under certain circumstances, depending upon an employee’s nationality and immigrant visa classification sought, a Form I-140 and Form I-485 can be filed concurrently. This is called “Combined Processing” and is explained under Adjustment of Status.
Premium Processing of I-140 Petition
The USCIS offers Premium Processing of certain I-140 petitions. The USCIS will process the I-140 petition within 15 calendar days from the date the USCIS receives the I-140 petition. The Premium Processing filing fee is U.S.$1,000.00. This dramatically reduces the processing time of an I-140 petition.
Issue - Company’s Ability to Pay Wage Offered
One important consideration in processing an I-140 petition is the ability of the petitioning company to pay the wage offered in the petition. An employer is not obligated to pay the wage offered in the I-140 petition to the foreign national employee until U.S. lawful permanent resident status is granted.
However, a petitioning company must submit copies of recent tax returns, annual reports or audited financial statements to prove its ability to pay the wage offered. A company is determined to be able to pay the wage offered if one of the following tests is satisfied:
- The foreign national employee is already employed with the petitioning company and is being paid at least the wage offered in the I-140 petition;
- The petitioning company’s net income exceeds the wage offered in the I-140 petition to the foreign national employee; or
- The petitioning company’s net current assets exceed the wage offered to the foreign national employee.
A petitioning company is obligated to prove its ability to pay the wage offered from the date the foreign national employee’s “priority date” is established until the foreign national employees is granted U.S. lawful permanent residence status.
Issue - Priority Date
A priority date is established on the date a PERM Labor Certification is filed with the U.S. Department of Labor (for EB-2 and EB-3 cases) or when an I-140 petition is filed with the USCIS (for EB-1, EB-4, EB-5 and any other employment-based immigrant visa petitions not requiring a PERM Labor Certification). The priority date determines a person’s place in line in a specific employment-based or family-based preference category. Priority dates are also allocated based upon a person’s country of birth, not nationality. For example, a person applying for Second Preference Employment Category (EB-2) with a Japanese passport, but born in India would be classified under the Second Preference (EB-2) India quota.
Due to the current quota system, when an I-140 petition is approved, a person may need to wait until his/her priority is at the “front of the line”.
Monitoring the Priority Date
Around the middle of every month, the U.S. Department of State (DOS) publishes the Visa Bulletin which summarizes the availability of immigrant numbers. Allocations of immigrant visa numbers are made in chronological order of priority date (i.e., date of filing the PERM application) under the numerical limitations imposed by law.
Section 201 of the Immigration and Nationality Act (INA) imposes a worldwide annual limit of 140,000 employment-based immigrant visas. Section 202 of the INA prescribes that the per-country limit for all immigrants from a country be set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 per annum.
If the demand for available immigrant visas in a particular visa preference category exceeds supply, an immigrant visa cannot be issued until the Visa Bulletin publishes the priority dates that can be allocated an immigrant visa. This is called the cut-off date. Only applicants with a priority date on or earlier than the cut-off date in his/her preference category may be allotted an immigrant visa number.
If an individual’s priority date is indicated as “C” in the Visa Bulletin, this means there are immigrant visa immediately available for persons in the listed classification. The “C” stands for “Current”. If the Visa Bulletin shows a “U” for a particular preference category, this means immigrant visas are unavailable. The “U” stands for “Unavailable”.
An additional consideration is a person’s nationality. If a person is a national of China, India, Mexico or the Philippines, there may be a longer wait to file the I-485 because high demand for immigrant visas from these countries greatly outstrips supply on a regular basis.
Approval of I-140 Petition
When the USCIS approves the I-140 petition, a Form I-797 Approval Notice is issued.
Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
Once the I-140 petition is approved, and the priority date is current, an individual can complete the final step in processing the green card application. The first option is called Adjustment of Status. The second option is called Consular Processing.
Adjustment of Status (Form I-485)
Once an I-140 petition is approved, the person’s priority date is current, he/she is legally present in the United States, and the person wishes to adjust his or her status from nonimmigrant to immigrant while in the United States, the person files a Form I-485
Adjustment of Status application with the USCIS. All family members intending to immigrate with the principal applicant (i.e. spouse and minor unmarried children under the age of 21 years) should file an adjustment of status application concurrent with the principal applicant. All applicants must submit medical examinations with the I-485. Further, all applicants over the age of 14 must undergo fingerprinting and a FBI background check.
Please note the decision to process this final step is usually determined when the I-140 petition is filed. If a person requests Consular Processing in the I-140 and later changes his/her mind and wishes to convert the case to Adjustment of Status, it is easy to change the process. The person submits a Form I-485 with supporting evidence with the USCIS. However, if a person requests Adjustment of Status in the I-140 and later changes his/her mind to Consular Processing, it is more difficult to change the process. It will take several months to request the USCIS to transfer the file for Consular Processing.
The “Combined Processing” Option and Availability of Immigrant Visa
If a person’s priority date is current, a Form I-140 and a Form I-485 may be filed concurrently. An individual must review the current issue of the U.S. Department of State’s (DOS) Visa Bulletin to determine if he/she is eligible for combined processing.
Travel and Employment During the Adjustment of Status Process
When an adjustment of status application is filed, the principal applicant and each family member may apply for an Employment Authorization Card (EAD), which authorizes employment in the U.S., and an Advance Parole (AP), which authorized international travel and re-entry into the U.S.
As long as the adjustment of status application is filed prior to the expiration of a person’s nonimmigrant status, the person is deemed “in-status” and can remain in the United States after expiration of the nonimmigrant status set forth on the person’s Form I-94, Arrival/Departure Card. In order to continue working without any gap in employment, a person should apply for an EAD the same time the I-485 is filed.
The AP is a critical document if a person does not possess a valid H-1 or L-1 visa because, after the submission of an I-485, neither the principal applicant nor his/her family members may leave the United States without first obtaining the AP. If such a person departs the U.S. without first obtaining an AP, that individual may not be readmitted into the United States.
If the principal applicant has a valid H-1 or L-1 visa, he or she may continue to work and travel utilizing the H-1 or L-1 visa as long as his/her status remains valid and is returning
to the U.S. to continue employment with the same petitioning company that sponsored the H-1 or L-1 status. H-4 or L-2 visa holders may continue to travel and legally remain in the United States.
All nonimmigrant visa classifications, other than H-1 or L-1, require issuance of an AP to return to the U.S. after international travel while an Adjustment of Status application is pending.
Delays Due to Lengthy FBI Background Checks
When the USCIS processes the I-485, all applicants under the age of 14 years must undergo a FBI background check. For some individuals, the FBI background check is completed very quickly, sometimes in a few months. For others, the process can take longer, sometimes several months. The USCIS issues a Biometrics Appointment Notice to each family member requiring an FBI background check. Each person is directed to go to an Application Support Center (ASC) and have his/her fingerprints scanned for the check.
Delays Due to Personal Interview at USCIS District Office
In addition, some cases are sent to a local USCIS District Office where an applicant must attend a personal interview. A case is sent to a District Office when an examiner believes there is something unusual about the case and a personal interview should be conducted to deal with the peculiarity.
Approval of the I-485
When the USCIS approves the I-485, a Form I-797 Approval Notice is issued. Upon receipt of the Approval Notice, the applicant is either requested to appear at an Application Support Center (ASC) to provide biometrics for production of the actual Form I-551, Alien Registration Receipt Card, commonly known as a “Green Card”, or the actual card is mailed directly to the applicant.
Change of Employers During the Adjustment of Status Phase of the Application
With the passage of the American Competitiveness in the Twenty First-Century Act in the fall of 2000 a dramatic change occurred. Under certain circumstances, an employee is able to change sponsors for his/her green card and immigrate through a new employer.
A person must generally meet the following three conditions to qualify under this rule:
- The Form I-140 petition must be approved by the USCIS;
- 180 calendar days must have passed since filing of the Form I-485, Adjustment of Status application; and
- The new job with the new company is in the same or a similar occupational classification as the one for which the I-140 petition was filed.
The USCIS has very specific rules which govern this area. It is highly recommended a person seek counsel with an immigration attorney prior to changing employers in this situation.
Consular Processing of Immigrant Visa
After an I-140 is approved by the USCIS, if a person has selected the Consular Processing option, the USCIS will transfer the I-140 file to the National Visa Center (NVC). Upon receipt of the file, the NVC will issue a notice the file has been received. If the person’s priority date is not yet current, the NVC informs the person his/her file will remain at the NVC for storage.
Once a person’s priority date is current, the NVC issues an Immigrant Fee Bill requesting the individual to pay the immigrant visa application fee to the NVC. When NVC receives the payment from the applicant, NVC issues a Form DS-230 Part I with instructions for completion by the applicant and any family members. The NVC also instructs the person to obtain documentation, such as police clearance certificates, military records, marriage certificates, etc.. The DS-230 Part I must be completed and returned to the NVC. Upon receipt of the completed DS-230 Part I, NVC will issue Form DS-230 Part II and additional instructions regarding required documents for the immigrant visa interview.
Concurrent with the issuance of the DS-230 Part II, NVC transfers the person’s file to the U.S. Embassy or Consulate located in the person’s home country. Upon receipt of the file from the NVC, the case data is entered into the U.S. Embassy’s or Consulate’s computer systems for tracking of the case and the person is scheduled for an immigrant visa interview. The person receives the notice of interview date from the U.S. Embassy or Consulate. The person must return to his/her home country to undergo a medical examination with a U.S. Embassy designated physician and attend a personal interview.
After the immigrant visa interview, the applicant is issued an immigrant visa. The applicant must enter the United States within six months of immigrant visa issuance. Failure to make an entry within six months renders the immigrant visa invalid. Further, the principal applicant must either enter before his/her family members or at the same time.
When entering the United States for the first time after immigrant visa issuance, the applicant is inspected and the immigrant visa validated. The admission stamp placed on the immigrant visa validates it and demonstrates the applicant is a U.S. lawful permanent resident. The actual green card is mailed to the individual’s residence in the United States.
FAQs for Processing Procedures for Permanent Visas through Employment
