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Employment Based Green Card Processing

The Green Card Process is a multi-step process. The timing of the process is dependent upon processing times by the various government agencies involved in adjudicating the various petitions. The employment based category is broken down into 5 categories. The categories include:

EB1 Category: Extraordinary Ability
Outstanding Researchers and Professors
Multinational Managers & Executives
*No Labor Certification Requirement*
EB2 Category: Advance Degree Professionals
Aliens of Exceptional Ability
*Labor Certification or National Interest Waiver Required*
EB3 Category: Professionals
Skilled Workers
Other Workers
*Labor Certification Required*
EB4 Category: Special Immigrants, including Religious Workers
EB5 Category: Investors

 Step 1. PERM Labor Certification

In the first step of the process the Employer submits a petition to the Department of Labor (DOL). Labor Certification Applications are governed by PERM. The PERM regulations require the following steps be taken to test the job market:

  1. Prevailing Wage Determination—a request to the State Employment Security Agency (SESA) must be made requesting the prevailing wage for the position listed in the Labor Certification. In order to proceed with the Labor Certification process, the employer must agree to pay the foreign national employee 100% of the prevailing wage (as of the date the foreign national employee obtains green card status).
  2. Two Print Advertisements—the position offered in the Labor Certification must be advertised twice in the local newspaper of general circulation (Sunday advertisement required).
  3. Worksite Posting—the position offered must be posted at the worksite for 10 business days.
  4. In-House Media—the position offered must be included in all in-house media generally used by the employer for recruitment of similar positions in the organization.
  5. Job Order—the position must be included in a job order with the SESA for a period of 30 days.
  6. Three Additional Recruitment Steps—all positions requiring a Bachelor’s degree or higher must include three of the following recruitment steps where U.S. employees are sought for the position offered:
    1. Job Fair;
    2. Employer’s Website;
    3. Job Search Website other than the employers (includes the website of the Newspaper of General Circulation, if applicable);
    4. On-Campus Recruitment;
    5. Trade or Professional Organization;
    6. Private Employment Firms;
    7. Employee Referral Program with identifiable incentives;
    8. A Notice of the job opening at a campus placement office, if the job requires a degree but no experience;
    9. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
    10. Radio and television advertisements.

If the employer has laid off employees in the occupation in the last six months, the employer must notify the employees of the position offered.

The recruitment period lasts for 30 days. During that time, all facially qualified applicants responding to the foregoing recruitment methods must be contacted. The applicants can only be rejected for lawful job-related reasons. In the event a willing and qualified U.S. worker is identified as a result of the recruitment, the employer will not be able to file the Labor Certification. If there are no qualified U.S. workers available, the Labor Certification is thereafter filed. (Under the regulations, the petition cannot be filed until 30 days after the recruitment period ends).

Pursuant to new PERM regulations the Employer must pay for its associated costs and attorney’s fees incurred in obtaining a Labor Certification from the Department of Labor. It is a violation of the PERM regulations for an employee to pay for the employer’s costs in obtaining the Labor Certification, including the employer’s attorney’s fees/legal representation and/or associated Labor Certification costs. Payment includes, but is not limited to, monetary payment, wage concessions, deductions from wages, salary or benefits; kickbacks; bribes or tributes; in-kind payments and/or free labor. This prohibition only applies to employer related costs and fees associated with the PERM Labor Certification Process. It does not apply to the I-140 and Adjustment of Status phase, which can be paid completely by the Employee.

Step 2. I-140 Immigrant Visa Petition

Once the DOL certifies the employer’s Labor Certification Application (if required), an I-140/Immigrant Visa Petition can be filed with the United States Citizenship and Immigration Service (USCIS). The I-140 Petition must establish:

  1. The applicable employment based category;
  2. That the employee is qualified for the job opportunity as defined in the employer’s Labor Certification;
  3. That the employee has verifiable documentation demonstrating the employee’s qualifications for the position offered;
  4. That the employer has the financial ability to pay the employee the offered wage;
  5. That there is a bona fide offer of permanent employment.

Premium Processing is currently unavailable for I-140 Petitions.

Step 3. Adjustment of Status/Consular Processing

The final step in the green card process cannot be commenced until a visa is available in the applicable employment based immigrant visa category. Generally, there are approximately 40,000 visas available each fiscal year in each employment based category. In recent years, the demand for immigrant visas has outnumbered available visas. Accordingly, employment based visa categories may be, or may become, backlogged. The availability of immigrant visas is monitored by the Department of State (DOS). The DOS maintains a Visa Bulletin which shows the availability of visas. The employment based category (1st, 2nd, 3rd, etc), along with the employee’s PRIORITY DATE and nationality determines when an immigrant visa is available.

  • The employee’s Priority Date is established on the date the employer files the Labor Certification Application with the Department of Labor or the date the USCIS receives the I-140 Petition (if Labor Certification is not required). For example, if the employer electronically submits the Labor Certification on April 15, 2007, the employee’s Priority Date is April 15, 2007.
  • The Visa Bulletin is available at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The final step in the process can be accomplished by either:

  1. Consular Processing– processing time (varies by Consulate). Following approval of the I-140, the USCIS will transfer the file to the National Visa Center (NVC). The process of the transfer can take 4 to 6 weeks to complete. Once an immigrant visa is available in the visa category, the NVC will send correspondence requiring the payment of applicable fees. Upon receipt of the fees, the NVC will request the submission of certain documentation. Following submission of the required documentation the NVC will transfer the file to the applicable Consulate which will thereafter schedule an interview appointment for the foreign national and any dependent family members. Following the interview, the Consulate issues an immigrant visa and the foreign national re-enters the U.S. as a green card holder.

OR 

  1. Adjustment of Status Adjustment of Status processing is only available to foreign nationals who meet the eligibility criteria and are legally present in the U.S. at the time of filing the petition. The Adjustment of Status Petition can be filed concurrently with the I-140 Immigrant Visa Petition if an immigrant visa is available in the applicable employment based category. If an Immigrant Visa is not immediately available, then the Applicant will have to wait until a visa becomes available to file for Adjustment of Status. An Adjustment of Status Package will be filed for the primary employee, as well as each qualifying dependent family member (spouse and unmarried foreign-born children under the age of 21).Following submission of the Adjustment of Status package to the USCIS, the USCIS will schedule an appointment requiring each applicant over 14 to be fingerprinted for FBI background clearance. While interviews are generally waived for employment based adjustment applications, applicants may be required to attend an interview at the USCIS local District Office. Upon approval, the USCIS will issue the card showing status as a legal permanent resident (popularly known as a green card). All processing for Adjustment of Status occurs in the U.S.

All Applicants for Adjustment of Status are eligible to apply for work authorization while the application is pending (Employment Authorization Document or EAD) as well as Advance Parole (which will allow the Applicant to travel outside of the US while the Adjustment of Status application is pending in the event that the applicant is not otherwise maintaining H or L status).