Employment-Based Permanent Residence (with labor certification)
To apply for US permanent residence (or “green card” status) based upon employment, there are several methods. The most common one is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the U.S. Department of Labor’s (DOL’s) newly issued PERM regulation.
PERM Labor Certification
Under PERM, the DOL is responsible for the review and adjudication of labor certification applications; the State Workforce Agencies are no longer involved in the review process. Preparation of the labor certification application package under PERM still remains complex and takes more preparation time than a typical nonimmigrant (H or L) petition. When complete, the labor certification application is submitted electronically to a national DOL processing center. Electronic filing greatly reduces the number of reoccurring backlogs in the queue, resulting in significantly shorter processing times. The date of submission of the online form serves as the priority date for the entire permanent residency process (i.e., one’s place in the queue).
The DOL carefully reviews the labor certification application for completeness and adequacy. It may perform an audit of the application and request that documentation of the application be submitted. The online system may randomly select cases for audit as well. When the review is complete, the DOL either issues its approval or other decision based on the merits of the application. Approved applications are returned to attorneys handling the case, and signatures of the approved application are required by both the employer and the employee before it can be used in the second stage of the process.
RIR and Traditional Labor Certification
Labor certification applications filed prior to March 28, 2005, were filed under either the Reduction-in- Recruitment (RIR) or traditional labor certification procedures. Most pending labor certification applications have been transferred to a DOL Backlog Processing Center (BPC), where the application will be adjudicated. RIR applications will either be approved or be slated for supervised recruitment, along with cases that are filed as traditional labor certification applications. Under supervised recruitment, the employer is required to conduct formal recruitment for the position under the supervision of the DOL. As with all labor certification applications, approval of a case under supervised recruitment depends on the employer’s ability to demonstrate that during the recruitment period no qualified US worker was available and willing to take the position. The processing times for RIR and traditional cases may take two and a half or more years for adjudication, depending on the state and region in which the case was originally filed. Some pending cases can be re-filed under the PERM procedures, which will take advantage of PERM’s faster processing while retaining the priority date of the pending application.
I-140 Immigrant Petition
Once the labor certification application is certified, it provides the basis for the company to move to the second stage of the process and file an I-140 immigrant petition with the US Citizenship and Immigration Service (USCIS). USCIS then determines the “immigrant category” of the case and adjudicates the I-140 petition. Processing times may vary depending on the service center jurisdiction.
I-485 Application for Adjustment of Status to Permanent Residence
The I-140 petition provides the basis for the employee’s I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her I-485 application concurrently with the I-140 or after the I-140 is filed, as long as his or her “priority date” is current. “Priority dates” are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found here.
A ‘C’ on the charts in the middle of the bulletin means that the category is “current” and that there is no need for applicants born in that country to wait to file an AOS application. If a date is indicated, a person born in that country (with certain exceptions) must wait to file the AOS application if his or her priority date is not current (i.e. his or her labor certification was filed after that date).
Along with the AOS application, requests for travel permission (advance parole) and employment authorization for the employee and dependents may be filed. Once the advance parole application is approved, the employee and dependents will be able to travel outside the U.S. even if they do not have valid nonimmigrant status. Once the employment authorization document (EAD) is approved, the employee’s dependents will be authorized to work in the U.S. With an AOS application approval, the employee and dependents become US permanent residents and green cards are issued through the mail.
