Overview

The most common way of securing legal permanent residency through employment is by filing a labor certification application, the first stage in most employment-based immigration cases. This requires recruitment by the United States employer to test the labor market in order to determine if there are any available, willing, able and qualified United States workers.

However, the labor certification process has many restrictions and hurdles to overcome. If the labor certification application was filed pre-PERM and is pending at a Department of Labor Backlog Reduction Center, the processing time could be lengthy. Therefore, the alien should seriously consider filing a special type of immigrant visa petition that circumvents the labor certification process.

It should be emphasized that even if a special type of immigrant visa petition is filed, with the growing backlogs for immigrant visas and the restrictions and caps on nonimmigrant visas, it is still important to develop sound immigration strategies to maintain an alien's legal status in the United States while the labor certification or immigrant visa petition is pending.

It is critical for an alien to maintain temporary status in the United States to preserve eligibility for obtaining legal permanent residency through a process called “adjustment of status.” In most situations, an alien will be barred from applying for adjustment of status if continuous lawful status in the United States has not been maintained.. Also,

if the alien decides to depart the United States to obtain an immigrant visa abroad, the alien may be subject to the three- or ten-year bar to reentry depending on the length, nature and timing of the alien's unlawful presence in the United States. Once an alien has applied to adjust status, he is in lawful status as an applicant for adjustment of status and may obtain travel and employment authorization. (It should be emphasized that if the alien had acquired a certain period of unlawful presence in the United States before filing for adjustment of status, then he may subject himself to the three- or ten-year bar to reentry should he travel abroad on advance parole while his application to adjust status is pending.)

Are you an outstanding professor, researcher, multinational executive or manager? Do you have extraordinary ability or have you substantially contributed to your field? Call Attorney Monique Kornfeld to learn if you or your employee is eligible for an employment-based preference visa: 617-323-5049.

Beneficial Provisions of the Immigration Law

Several provisions of immigration law assist the alien in maintaining nonimmigrant status beyond the statutory limitations until application for adjustment of status to legal permanent residency.

First, the nonimmigrant visa status may be extended beyond the statutory limit when the alien is a beneficiary of an approved employment-based immigration petition and is subject to per country limitations.  In this situation, the alien may apply for a one-time extension of nonimmigrant status that is valid until the application for adjustment of status has been adjudicated. 

Second, an H-1B alien may extend one's status in one-year increments beyond the six-year limit if 365 days have elapsed since the filing of either a labor certification application or an

employment-based immigrant visa petition on the alien's behalf.  The extensions continue until the adjustment of status application has been adjudicated.  

If the alien is unable to take advantage of the above two laws, other immigration provisions enable an alien who has acquired unlawful presence in the United States to apply for adjustment of status.  Under the Legal Immigration Family Equity (LIFE) Act Amendments of 2000, an alien who has violated the terms of his lawful status in the United States or has entered the United States illegally may apply for adjustment of status under INA § 245(i) as long as the alien is the beneficiary of a visa petition under INA § 204 (e.g. Form I-140 for employment-based petitions or Form I-130 for family-based petitions) or an application for labor certification filed on or before April 30, 2001. 

The alien must pay a penalty fee of $1,000 along with the application to adjust status.  Alien beneficiaries of labor certifications applications or immigrant visa petitions that were filed subsequent to January 14, 1998 through April 30, 2001, must also demonstrate that they were physically present in the United States on December 21, 2001, the date the LIFE Act was enacted.  Other types of applications and petitions - such as asylum applications, diversity visa applications and diversity visa lottery-winning letters - do not serve to grandfather the alien for purposes of § 245(i).

Also, under INA § 245(k) certain aliens who: (1) were lawfully admitted to the United States and who (2) are eligible to receive an employment-based immigrant visa under INA § 203(b), paragraphs (1), (2), or (3), or § 203(b)(4), in the case of a §101(a)(27)(C) religious worker, are

eligible to apply for adjustment provided that subsequent to their admission they have not, for an aggregate period of more than 180 days, failed to continuously maintain a lawful status, engaged in unauthorized employment, or otherwise violated the terms and conditions of their admission.

Because of these considerations, the alien and the employer should quickly commence the process of applying for legal permanent residency so that they do not fall into the many potential traps created by the complicated web of new immigration laws.