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).

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.

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.

Can I file two or more kinds of special immigrant visa petitions concurrently or sequentially?

Yes. In particular, individuals may wish to file a special immigrant visa petition in the employment-based first preference category (EB-1) and one in the employment-based second preference category (EB-2) (this would be the national interest waiver). Visa number backlogs vary among the categories for natives from different countries, with India and China usually backlogged for EB-2 and India for EB-1 and EB-2 preferences.

The strategy behind filing two or more petitions is that the applicant gets more than one bite at the apple. Her cases may be adjudicated by different immigration officers with different perspectives (the standards, such as “extraordinary ability,” international recognition for outstanding research,” and “substantial contributions to the field” are ambiguous).

Can I file a special immigrant visa petition and a PERM labor certification?

Yes. The strategy is the same as above in that the applicant gets two or more bites at the apple. If the applicant has a particularly strong background and impressive achievements, and is concerned that minimally qualified US workers will respond to the recruitment, then the filing of a special immigrant visa petition is a good concurrent option. Also, the applicant may prefer to self-petition under one of the special immigrant visa petitions, because it offers more job flexibility and mobility while the petition is pending, but want to have the labor certification as a safe alternative.

What kind of recruitment is involved?

In the six months prior to filing an application, employers are required to place a job order with the SWA and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods. Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

One exception to the Sunday newspaper-advertising requirement is when an employer can document that a rural newspaper that is appropriate for recruiting has no Sunday edition in the area of intended employment. The exception applies only to rural newspapers. If a suburban newspaper has no Sunday edition, the employer must publish a Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

Another exception to the Sunday advertising requirement is that if the job requires experience and an advanced degree, and a journal advertisement is appropriate for the job opportunity, then the employer has the option to use a journal advertisement in lieu of one of the Sunday print advertisements.

Employers of professional are required to conduct three additional types of recruitment, selected from the following list:

  • job fairs
  • employer’s web site
  • job search website other than the employer’s
  • on-campus recruiting
  • trade or professional organizations
  • private employment firms
  • employee referral program with incentives
  • campus placement offices
  • local and ethnic newspapers
  • radio and television advertising

The online job listing, even if posted in conjunction with a print advertisement, qualifies as an additional recruitment step. All of the additional steps must take place within six months of filing the case and only one of the additional steps may take place within 30 days of filing.

Are there any kind of special PERM cases with reduced or no recruitment?

Yes. There is the Schedule A labor certification and the college professor labor certification. The Schedule A labor certification does not involve any recruitment or certification by the Department of Labor. Rather, the application is completed and filed with the US Citizenship and Immigration Service along with the immigrant visa petition (Form I-140), a notice of posting and a prevailing wage determination. Schedule A is for nurses, physical therapists, etc.

A PERM labor certification can also be filed with the Department of Labor under the college professor category. This requires that an advertisement be placed within 18 months of filing the petition, that the selection of the candidate have occurred after the advertisement and that there was a notice of posting and a prevailing wage determination. The other great advantage to this category, besides the fact that only one form of recruitment must be made, is that it is far easier to disqualify US workers. For the college professor labor certification, it must be demonstrated that the alien is more qualified than any of the US workers who apply for the job. In contrast, for a standard PERM labor certification, if any candidates apply that are minimally qualified for the position, then the labor certification will not prevail.

What is the standard of disqualification for the standard PERM case requiring full recruitment?

Minimally qualified, able, available and willing. Even if the applicant does not meet the minimum requirements listed, if the employer can train the applicant within a reasonable period of on-the-job training, that applicant is still considered minimally qualified, and the labor certification fails.

If the PERM labor certification recruitment brings about qualified US workers, then what can I do?

The recruitment can be redone later (there is no specific period of time after which one can restart the recruitment process).

How long does the Department of Labor (DOL) take to certify a PERM labor certification application?

The processing times have vary and can take up to one year.  If the DOL audits the case it can add approximately six months to the processing.

What happens if the PERM labor certification is denied?

The denial of the PERM labor certification can be appealed or reprepared and refiled.

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.

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.

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 https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.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.

What should I do 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.

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.

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

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

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, because he/she now can work using the EAD (work on the H-4 is prohibited).

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.

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 that the derivative family member will be following-to-join.

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, in which the derivative applicant retains the same priority date as the primary applicant spouse.

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.

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.

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. He/she will 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).

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.

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 there is time remaining in H-1B status).

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.

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 status must 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.

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.

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.

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