FAQs for
Legal Permanent Residency

1. How can I obtain legal permanent residency (green card) based on employment?

Most employment-based aliens obtain legal permanent residency through the PERM labor certification application. This requires advertising (recruitment) to determine if any US workers are able, available, willing and qualified to fill the position.

Some aliens may qualify to file a special immigrant visa petition to avoid the labor certification process. These petitions include:extraordinary ability (EB-1), outstanding researcher (EB-1), multinational executive (EB-1), national interest waiver (EB-2) and immigrant investor (EB-5).

2. What are the advantages and disadvantages to the special immigrant visa petitions that do not require recruitment?

• In the past when the labor certifications were taking years to process, a special immigrant visa petition was the only way to avoid the delays. However, now that the labor certifications are taking months instead of years, there is no great time advantage.
• Some special immigrant visa petitions, such as the national interest waiver (EB-2) and the extraordinary ability petitions (EB-1) do not require sponsorship by an employer. In other words, the alien can self-petition or sponsor himself. The PERM labor certification requires sponsorship by an employer, and the alien should not have a significant ownership interest or influence or control over the employer.
• Since there is no recruitment with the special immigrant visa petitions, there is no competition for the position and no added expense to the case.
• There is no prevailing wage requirement with the special immigrant visa petitions, although the higher the salary the stronger the case in showing the recognized skill of the alien.

3. What are the advantages to filing a PERM labor certification over a special immigrant visa petition?

With the standard PERM labor certification application, the alien need not show she is extraordinary, outstanding or contributing to a far greater degree than her colleagues. She merely needs to show that she is qualified for the position and that no minimally qualified, able, available and willing US workers applied for the job.

13. If the PERM labor certification is certified by the Department of Labor then what happens next?

The employer files the Form I-140 immigrant visa petition along with evidence of its ability to pay the offered wage as of the date of filing the labor certification and continuing up until the filing of the Form I-140. Also, the employee must submit documentation establishing he or she met the minimum requirements for the position at the time the labor certification was filed (with certain exceptions), such as educational diplomas, transcripts and equivalency evaluations, employment experience letters, training certificates and licenses.

14. How long will it take for the Form I-140 immigrant visa petition to be approved?

The processing times vary, but generally within around six to eight months.

15. When can I file for legal permanent residency?

When a visa number is available for the employment-based preference category. Please see the US Department of State Visa Bulletin for visa number availability at http://travel.state.gov/visa/frvi/bulletin/
bulletin_1360.html. If a visa number is available at the time the labor certification is certified, then the alien can apply for legal permanent residency through adjustment of status concurrently with the Form I-140 immigrant visa petition.

16. What should I be careful of while I am waiting for a visa number to become available to file for legal permanent residency?

The foreign national should be maintaining her nonimmigrant status until she can apply to adjust her status (or leave the U.S. to consular process abroad for the immigrant visa). There are exceptions to the rule requiring maintenance of immigration status in order to adjust status in the US. The first is where the person did not violate her status for more than six months since her last lawful entry into the U.S. (Section 245(k)). The second is where the person is grandfathered under INA Section 245(i), whereby the person must have had an IV or LC filed before 4/30/01 (or in some cases their spouse or parent met this requirement), must have been physically present in the US by 12/21/00 (if filed after 1/1/98) and pay a penalty fee of $1,000.

17. How can I get additional years in H-1B status beyond the six-year limit?

There are two ways that an alien may extend her H-1B status beyond the six-year limit:

1. A labor certification was filed for the alien more than 365 days before the alien reached the six-year limit; and
2. There is an approved Form I-140 immigrant visa petition on behalf of the alien and there is no immigrant visa number availability for the alien to apply for legal permanent residency.

The labor certification-based extension is granted in one-year increments. However, the I-140-based extension is granted in three-year increments. Both may be requested indefinitely until the alien can apply to adjust status to legal permanent residency.

18. What are the different processing procedures in order to obtain legal permanent residency?

Adjustment of status to legal permanent residency (filed via the Form I-485) and consular processing abroad at a US consulat.

19. What are the advantages and disadvantage of consular processing versus adjustment of status in the US?

Adjustment of status allows the alien to remain in the country while the application is being processed. During this period, the alien is in lawful status and the alien can obtain universal work authorization (employment authorization document – EAD) and travel permission (advance parole – AP) to travel outside the country without abandoning the application to adjust status. This is a great benefit for the spouse of the primary Form I-140 immigrant visa petition beneficiary, since now he or she can work using the EAD (work on the H-4 is prohibited).

20. What family members can apply for legal permanent residency along with me?

The spouse and unmarried children under 21-years-old may apply for legal permanent residency either along with the primary alien or later through the follow-to-join option. If following to join the primary alien, the derivative family member must have been acquired before the primary alien obtained legal permanent residency.

21. What if I get married after I file to adjust my status but while it is still pending?

The spouse of the primary applicant may file an application to adjust status provided the marriage occurred before the primary applicant obtained legal permanent residency. The same applies for the consular process abroad. In the latter situation, the primary applicant would file the Form I-824 to notify the US consulate abroad of that the derivative family member will be following-to-join.

22. What if I get married after I am approved for legal permanent residency?

A spouse acquired after the primary applicant obtains legal permanent residency can be sponsored by the primary applicant. However, a visa number will not be immediately available, unlike the following-to-join scenario, where the derivative applicant retains the same priority date as the primary applicant spouse.

23. What is my status while my Form I-485 application to adjust status is pending?

If the applicant is maintaining her H-1B status while the adjustment is pending, then she is both an H-1B alien and an applicant for adjustment of status. This is the case even if the alien travels abroad and reenters the US using the H-1B and not advance parole. Once the alien loses her underlying nonimmigrant H-1B status, then she is considered an applicant for adjustment of status and needs the EAD to work and the advance parole to reenter the country after traveling abroad.

24. Can I travel abroad while the Form I-485 is pending?

Yes. If in H-1B status, the applicant can continue to travel using her H-1B visa and her I-485 receipt notice, or she can use the advance parole document. Once she loses her H-1B status and wants to travel abroad without abandoning the adjustment application, then she must have the advance parole document, which must have been issued before she departed the US. It is preferable to reenter the country as an H-1B worker as opposed to an alien with advance parole, since the H-1B worker will have more rights in removal proceedings if something goes awry with the adjustment of status application.

25. Should I apply for the employment authorization document (EAD) and advance parole travel document (AP) along with my application to adjust status?

The real benefits to the EAD and AP for an applicant for adjustment of status who is also in H-1B status is that it allows the alien to work outside the terms of employment. Also, pursuant to the portability provision discussed below, should the alien decide to transfer employers during the adjustment process, then the alien could start working for the new employer immediately if the alien has EAD and not have to obtain a new H-1B petition with the new employer. 

The EAD should be renewed four months in advance of its expiration to assure a continuous ability to work. It can be applied for online at USCIS’s website (e-filing for Form I-765). The advance parole document should be renewed six months in advance of its expiration to assure a continuous ability to travel abroad. It can be applied for online at USCIS's website (e-filing for Form I-131).

26. What happens if my nonimmigrant status (e.g. H-1B) expires while my application to adjust status is pending?

The applicant for adjustment is still in proper status so long as he works with authorization using the EAD, or chooses not to work at all. Also, the applicant must have advance parole to travel abroad, and the parole must have been issued before departing the US.

27. Should I extend my nonimmigrant status while the adjustment is pending?

It is not necessary, but it is advisable in certain situations. For example, if the adjustment is denied and the applicant maintained his underlying H-1B status, then he could maintain this H-1B status, extend it and change employers (provided that there was time remaining in H-1B status).

28. How long does it take for the Form I-485 application to adjust status to be approved?

Please see USCIS’s website at www.uscis.gov for current processing times, which can average from six months to one year or more. Even if the background checks are still pending, USCIS will now approve an adjustment of status application if it has been pending for at least six months and it is otherwise approvable.

29. Can I change employers while the process is pending?

Under the portability provision of the adjustment of status process, the applicant can change employers
(even to self-employment) during the employment-based adjustment process. The new occupation must
be substantially similar to the original position in the labor certification or I-140. The Form I-140 immigrant visa petition must have been approved (or must have approvable at the time of the transfer) and the Form I-485 application to adjust statusmust have been
pending at least 180 days.

If the I-140 is still pending 180 days
after the I-485 was filed, and the I-485
is still pending, USCIS must first determine whether the I-140 would
have been approvable the first 180
days after the filing of the I-485. If the
I-140 is approvable, except for an ability to pay issue or any other issue relating to the post filing period, USCIS must approve the petition and then determine whether the occupation of the new position is the same or substantially similar to the original position. 

30. After the case is approved, how long does it take to obtain
the alien registration card?

Usually, within several weeks of USCIS’s notification of approval of the Form I-485 application to adjust status, the alien receives the alien registration card.

31. What can I do if my application is delayed because the security and background checks have not been completed?

1. The applicant can request a 30-day report from USCIS into the status of the case by calling 1-800-375-5283.
2. American Immigration Lawyers Asssociation (AILA) liaison officers can investigate the delay.
3. The applicant can contact a Congressional representative to
   review the matter.
4. The applicant can file a mandamus petition in federal court to sue the government to act. Applicants should
   be careful that their adjustment cases are foolproof, since adjustment applications processed pursuant to a mandamus order are often scrutinized for any possible grounds of inadmissibility or other grounds of ineligibility.