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Employment-based Immigrant Visas

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 Boston, MA Attorney Monique Kornfeld to learn if you or your employee is eligible for an employment-based preference visa: 617-323-5049.