Green Card Via Employment

For most applicants, there are three steps to the green card process via employment. The three steps are:

Filing a PERM Labor Certification Application with the U.S. Department of Labor
Filing an Immigrant Petition (I-140)with the U.S. Department of Homeland Security
Filing an Adjustment of Status (Green Card Application) with the U.S. Department of Homeland Security

Foreign workers exempt from testing the labor market via a PERM application are discussed in the following articles: National Interest Waiver, L-1A and O-1.

Step One of the Green Card Process: PERM Labor Certification Application

PERM Procedures and Employer Responsibilities:

The PERM labor certification application is the first step in the green card process and is filed with the U.S. Department of Labor. The purpose is to see if a qualified and willing U.S. worker is interested in the applicant’s position. An employer can sponsor an employee or a prospective employee they would like to hire at a later date.

To test the labor market, the employer must advertise over a period of at least thirty days before filing the application. Recruitment must include two Sunday ads in the newspaper of highest circulation for that city; an internal posting; and a 30 day ad on the State’s online job bank. Employers are then allowed to choose three alternative forms of recruitment from a list of ten options: commonly used options include employee referral program; web based private classifieds; employer’s website and campus recruitment.

Employers must review all resumes from U.S. workers that are submitted during the recruitment period. Legitimate reasons to disqualify applicants include: he or she is not a U.S. worker; does not meet the minimum educational and experience requirements; cannot satisfactorily perform the job duties; is not interested in the position. If a person appears qualified on the face of the resume, the employer must timely contact the applicant for an interview and document the conversation.

If after resume review and a controlled vetting process, a qualified and willing applicant is not located during the advertising period (and a 30 day wait time), the PERM application is then filed with the Department of Labor.

Most applications are adjudicated within 90 days. An approved PERM labor certification application does not grant the applicant status in the U.S. or permission to work in the U.S. It only means that the person can move on to tthe next step in the green card process: the I-140 petition.

Importance of PERM Filing Date:
The PERM filing date is significant because it puts the applicant “in line” for a green card filing date-similar to taking a number at the supermarket deli line. There is a limited number of green cards given to employment based applicants each year, and this number fluctuates monthly. Given the unpredictability of the quota numbers, filing the PERM application early can save money and time for both the employer and employee and take years off of an employee’s wait time for a green card.

Who Can Skip the PERM Labor Certification Application:

Foreign professionals who are in the EB-1 processing category do not need to test the labor market via the PERM application. Instead these applicants skip directly to the I-140 petition. These applicants include O-1 workers of extraordinary ability, O-1 outstanding researchers and scholars, L-1A multinational executives and managers and a limited number of E-2 Executives and Managers. A small minority also qualifies for the exemption via the National Interest Waiver.

Step Two of the Green Card Process: The I-140 Petition

After the PERM labor certification is approved, the sponsoring employer files an I-140 immigration petition with DHS. This application must be filed within 180 days of the PERM certification or the PERM expires. Among other things, the employer must show financial stability, an ability to properly pay the applicant and a desire to continue the applicant’s employment. The employee submits documentation verifying that he or she meets the minimum job requirements as listed in the certified PERM application.In addition, the employer submits the original approved PERM application, as DHS has the final approval over this application. In some instances the employer and employee are able to file the I-140 petition and the adjustment of status application simultaneously. (See below for additional information.)

Who Can File Step Two and Step Three Simultaneously:

Some applicants are able to file the I-140 petition (step two) and the adjustment of status application (step three) together. The Department of States allows a certain number of foreign workers to apply for a green card per year. First, workers are placed into one of five quota categories. If the quota has not been met in that person’s category on the day the PERM application is approved, he or she can file these two steps together, saving time and money for the employer and employee. The D.O.S. publishes a visa bulletin each month with updated quota numbers.

Step Three of the Green Card Process: The Adjustment of Status Application

After the labor certification application and I-140 immigrant petition are approved, the applicant then files the third and final step with DHS, the green card application. The technical term for this application is “adjustment of status”. The employer does not have any responsibility at this stage, except to continue sponsorship. Instead the applicant is under scrutiny, signs all legal forms and produces a significant amount of documentary evidence. If approved, the applicant then obtains his or her green card.

Eligibility Requirements for the Adjustment of Status Application:

Generally, the applicant must show:

Maintenance of status while in the U.S. (i.e. never overstaying a visa or doing something to violate that visa)
That the sponsoring employer paid the correct wage as listed on the underlying non-immigrant visa
That he or she has not been employed without authorization including self employment or working for an unauthorized employer
Filed required state and federal taxes
Has not otherwise violated immigration or other laws of the United States

It is not uncommon for an applicant to get through steps one and two, only to be denied a green card in the third and final step. Typical examples include a person in H-1B status who was not actually paid the wage pledged by an employer or someone who really performed different job duties than those stated on the H-1B petition, labor certification application or immigrant petition. Applicants interested in obtaining a green card should create a long-term strategy with their immigration attorney, that encompasses that person’s entire stay in the United States. Careful planning will increase the alien’s eligibility for a green card and help that person to avoid simple mistakes that will ultimately result in a denial.

Family Members:

The principal applicant’s spouse and children under 21 are also able to file for green cards, travel permission and work authorization.

Green Card Waiting Times:

Wait times vary significantly for employment based green card applicants. The Department of States takes all applicants and divides them into five categories, that are based on education and experience levels required for the sponsored position. Each category is assigned a yearly quota that determines the number of applicants who can apply for a green card each year. Because the processing times often differ significantly via category, it is imperative that timing is factored into the overall immigration strategy of each applicant. The D.O.S. publishes a visa bulletin each month with updated quota numbers.

It is important to note that the employees own educational and experience level is generally not the determinative factor in assigning the category level. The exceptions to this rule are those in the EB-1 category and those holding master’s degrees or higher.

These categories are as follows:
EB-1:

Workers of extraordinary ability (O-1)
Outstanding professors and researchers (O-1)
Multinational executives and managers (L-1A)

EB-2:

Members of the professions holding advanced degrees (Master’s or higher)
When the position requires at least a bachelor’s degree and five years of post-degree progressive experience
Workers of exceptional ability

EB-3:

Professional (bachelor’s degree required)
Skilled workers (at least two years experience required)
Other workers (less than two years experience required)

EB-4: Religious Workers
EB-5: Immigrant Investors

Employment Authorization When Green Card is Pending:

When filing for a green card, the applicant may apply for work authorization based on the green card applications. If the underlying non-immigrant petition is still valid, the employee may continue employment based on this approval as well. Derivative Family Members may also apply.

International Travel When Green Card is Pending:

When filing for a green card, the applicant may apply for advance parole document, which allows re-entry to the U.S. after international travel. A green card applicant may not leave the U.S. without this document or the underlying green card application is abandoned! The exception to this rule is for H-1B and L-1 visa holders who still have unexpired visas.

Other Business Visas That Might Apply:

For more information about these business immigration visas, please read these articles:

If you think you need a lawyer to handle your immigration case, please contact Ms Troy to arrange a consultation to discuss your options. Located in San Francisco, Immigration Attorney Christine Troy can help guide you through the various legal processes and resolve any issues regarding your case. Ms Troy works on cases in San Francisco, the San Francisco Bay Area, Northern and Southern California, across the United States, and internationally.

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