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Permanent Residency
(Green Card)
- Family Based
- Employment Based
- Investment
- Asylum
- PERM
- Diversity Visa Lottery
- College Graduates
- Child Status Protection Act
- Adjustment of Status
- 180 Days Portability Rule
- Consular Processing
EMPLOYMENT BASED IMMIGRANT PERFERENCES
A total of 140,000 immigrant visas and green cards are issued each governmental fiscal year (October-September) by the Immigration and Naturalization Service ("INS"). These immigrant visas are broken down into different categories for each country in the world. Each category has different levels of credentials necessary in order to qualify. Once the available immigrant visas are gone for a particular category and country, no more immigrant visas can be issued for that year. This why there historically has been a backlog for foreign nationals from certain countries (such as India and the PRC) to obtain their immigrant visas, even though they have fulfilled all the requirements necessary to obtain a green card.
Following is a list of the different employment-based (or "EB") immigrant categories. Click on each category in order to see additional information on each category.
1. EB-1 Aliens of “Extraordinary Ability”
To qualify one should be a Person of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational executives and managers.
Foreign nationals can qualify as an alien of "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." To qualify for this category, a foreign national must show that (she) he is one of the "small percentage who have risen to the very top of the field of endeavor."
This can be done by showing that (she) he has received major international awards (e.g., a Nobel Prize or Academy Award). Absent such a specific award, the foreign national must provide at least three of the following types of evidence:
• Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
• Membership in professional associations requiring members to have made outstanding achievements.
• Published material in scholarly or professional publications.
• Evidence that the foreign national judges the work of others in his/her field of endeavor.
• Evidence of the foreign national"s original research and contributions of major significance to the field.
• Authorship of scholarly articles.
• Evidence that the foreign national"s work has been displayed at artistic exhibitions or showcases.
• Evidence that (she) he has performed in a leading or critical role for organizations that have a distinguished reputation.
• Evidence that the alien has commanded a high salary compared to others in his/her field.
• Evidence of commercial success in the performing arts.
• Other comparable evidence.
2. OUTSTANDING PROFESSORS AND RESEARCHERS
Outstanding professors and researchers who are internationally recognized for his/her outstanding achievements must be sponsored by an employer. To qualify as an outstanding professor or researcher, a foreign national must show that (she) he:
• Is recognized internationally as outstanding in a specific academic area.
• Has at least three years experience in teaching or research in the academic area.
• Seeks to enter the United States:
for a tenured position for a university or institution to teach in the academic area;
for a comparable position with a university or institution of higher education to conduct research in the area; or
for a comparable position to conduct research in the area with a department division or institute of a private employer if there are at least three persons working full time in research activities.
In order to show the above, the foreign national must provide evidence of at least two of the following:
• Receipt of major international awards or prizes for work in the particular field.
• Membership in professional associations requiring members to have made outstanding achievements.
• Published material in scholarly or professional publications written by others about the foreign national"s work.
• Participation as a judge of the work of others in the field.
• Original scientific or scholarly research contributions in the field.
• Authorship of scholarly books or articles in journals with international circulation in the field.
3. MULTI-NATIONAL MANAGERS AND EXECUTIVES
Executives or managers of foreign companies who are transferred to a U.S. affiliate, branch or subsidiary under a [[L-1Immigrant Visa]] , in most cases, can also apply for EB-1 status. The multi-national manager or executive must be sponsored by his/her employer. To qualify as a multi-national manager or executive, the foreign national must:
• Have been employed for at least one year in an executive or managerial capacity by a firm or corporation or other legal entity, affiliate, or subsidiary, within the preceding three years of the application.
• Be seeking to enter the U.S. in order to continue working for the same employer or for a subsidiary or affiliate in a "managerial or executive capacity".
a. L-1 TRANSFERS WITHIN MULTI-NATIONAL CORPORATIONS
Multi-national companies that wish to transfer "managers", "executives" or employees with "specialized knowledge" of the company"s business can do so using an L-1 nonimmigrant visa.
General Requirements
The foreign national transferring to the U.S. Company must have worked in the overseas company in a managerial or executive position, or have specialized knowledge about the company for one in the last three years.
• The foreign national must be coming to the U.S. to fill the same type of position (s)he held in the overseas company.
• The foreign national must have the education and experience to fulfill the duties of his/her position in the U.S.
• The ownership of the overseas company must be appropriately related to the U.S. branch, subsidiary or affiliate.
• The foreign national must have the intent to return to his/her home country after a temporary period in the U.S.
In general, an [["executive" or "manager"]] is someone who is in charge of the whole company, or a significant part of its operations (for example, sales or marketing). A person with "specialized knowledge" is someone who has some special knowledge of or expertise in the petitioning organization"s product, service or operations.
MANAGER FOR L-1 VISA DEFINITIONS
The Immigration and Naturalization Act ("INA"), as amended, defines foreign nationals who qualify for a L-1 intracompany transferee visa as follows:
1) Working in a "managerial capacity" (or as a "manager") means an assignment within an organization in which the employee primarily:
a) manages the organization, or a department, subdivision, function or component of the organization;
b) exercises supervisory control over the work of other supervisory, professional, or managers, or manages an essential function within the organization, or a department or subdivision of the organization;
c) has the authority to hire or fire employees, or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or employees are directly supervised; or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
d) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting any managerial capacity merely by virtue of the supervisor"s supervisory duties unless the employee"s supervised are professionals.
2) Working in an "executive capacity" (or as an "executive") means an assignment within the organization in which the employee primarily:
a) directs the management of the organization or a major component or function of the organization;
b) establishes the goals and policies of the organization, component or function;
c) exercises wide latitude in discretionary decision-making; and
d) receives only general supervision or direction from higher level executives, the Board of Directors, or stockholders of the organization.
Factors used to evaluate whether a foreign national is an "executive" or "manager" include:
a) whether the beneficiary has been, and will be, primarily performing the tasks necessary to produce the product or provide the services of the organization;
b) whether the beneficiary has occupied and will occupy a senior position within a complex organizational hierarchy;
c) whether the beneficiary has managed and will manage an important function within the organization;
d) whether the employer has the financial ability to renumerate the executive or manager and other workers who will perform the tasks necessary to produce the product or provide the services of the company;
e) whether the evidence presented by the employer is sufficient to establish the beneficiary"s eligibility for a L1A visa as an executive or manager; and
f) whether the petitioner is a new entity.
3) Immigration and Naturalization Service ("INS") regulations define an employee with "specialized knowledge" as:
Special knowledge possessed by an individual of the petitioning organization"s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization"s processes and procedures.
4) A "branch" is defined as an operating division or office of the same organization housed in a different location.
5) An "affiliate" is defined as:
One of two subsidiaries which are owned or controlled by the same parent or individual, or by a group of individuals so long as each individual owns and controls approximately the same share or percentage of each entity. An Affiliate also includes certain international accounting firms that market accounting services under an internationally recognized name.
56) A "subsidiary" includes:
direct or indirect ownership of at least half of another entity, ownership of 50% of a 50-50 joint venture with equal control and veto power, or ownership of less than 50% of an entity with in fact control over the company.
The foreign national must be transferred to a new or existing U.S. "branch", "subsidiary" or "affiliate". There are many complicated rules that determine whether a qualifying relationship exists between the overseas company and the U.S. branch, subsidiary or affiliate. Because of this, each case must be examined on a case-by-case basis.
How to File
Applications for an individual L-1 visa (i.e., for a single foreign national) are filed with the Immigration and Naturalization Service ("INS") using Form I-129 and "L" Supplement. Petitions are adjudicated in the INS having jurisdiction over the location of the U.S. Company. For information on the INS Service Centers,
• U.S. Government Agency Addresses
• U.S. Immigration and Naturalization Service
• U.S. Department of Labor
• U.S. Consulates Overseas
• Selected U.S. Government Information
• Links to U.S. Governmental WWW Sites
• U.S. INS Filing Fees
• INS/DOS Memorandum
• Forms
• US Government Agency Processing Times
Blanket L-1 petition programs may also be used for certain large corporations. For more information on blanket L-1 petition programs, click here.
Canadian citizens wishing to enter the United States on an L-1 visa also use INS Form I-129
They can file I-129 (in duplicate) directly at a Class A port of entry for admittance under the North American Free Trade Agreement ("NAFTA").
An individual L-1 petition may be granted for an initial period of up to three years. Managers and executives may stay in the United States on a L-1A visa for up to seven years. An employee with "specialized knowledge" may stay in the United States on a L-1B visa for up to five years. Spouses and unmarried children (under 21 years old) can enter the United States under an L-2 visa, but are not allowed to work.
Foreign National on an L-1 Visa can qualify for a Green Card without going through the Labor certification
Executives or managers of foreign companies who are transferred to a U.S. affiliate, branch or subsidiary under a L-1 non-immigrant visa in most cases, can also apply for EB-1 status. The multi-national manager or executive must be sponsored by his/her employer. To qualify as a multi-national manager or executive, the foreign national must:
• Have been employed for at least one year in an executive or managerial capacity by a firm or corporation or other legal entity, affiliate, or subsidiary, within the preceding three years of the application.
• Be seeking to enter the U.S. in order to continue working for the same employer or for a subsidiary or affiliate in a "managerial or executive capacity".
HOW TO FILE
A foreign national requesting a green card under the EB-1 category files the Immigration and Naturalization Service"s ("INS"s") Form I-140 with the INS Service Center that has jurisdiction over the foreign national"s place of work. The foreign national can include his/her spouse and dependents under 21 years old on his/her form I-140. For a listing of information required for an I-140 petition,
I-140 PETITION
INFORMATION REQUIRED FROM FOREIGN NATIONAL
Following is a list of information that is required in order to complete an I-140 immigrant petition for alien worker. Please send the information listed below to the appropriate Hammond & Associates office location to the attention of your case attorney for review.
Information Required:
1) Copy of passport for all family members
2) Copy of I-94 card (front and back) for all family members
3) Copy of most recent INS Approval Notice (Form I-797)
4) Current resume including the names, addresses, and exact dates of employment for each employer for the past six years
5) Copies of all college/university degrees and transcripts
6) Most recent W-2"s
7) Most recent paystub
8) Foreign address
9) Daytime and evening telephone numb
Once the I-140 petition is approved and an immigrant visa is available (i.e., there is no backlog of immigrant visas), the foriegn national will file an INS Form I-485 to request an adjustment of his/her status from "nonimmigrant" status to "immigrant" status. For a list of information required for an employment-based I-485 application,
HOW TO FILE
A foreign national requesting a green card under the EB-1 category files the Immigration and Naturalization Service"s ("INS"s") Form I-140 with the INS Service Center that has jurisdiction over the foreign national"s place of work. The foreign national can include his/her spouse and dependents under 21 years old on his/her form I-140. For a listing of information required for an I-140 petition,
Once the I-140 petition is approved and an immigrant visa is available (i.e., there is no backlog of immigrant visas), the foreign national will file an INS Form I-485 to request an adjustment of his/her status from "nonimmigrant" status to "immigrant" status. For a list of information required for an employment-based I-485 application
I-140 PETITION
INFORMATION REQUIRED FROM FOREIGN NATIONAL
Following is a list of information that is required in order to complete an I-140 immigrant petition for alien worker. Please send the information listed below to the appropriate WWW.LAWINSCAL.COM to the attention of your case attorney for review
Information Required:
1) Copy of passport for all family members
2) Copy of I-94 card (front and back) for all family members
3) Copy of most recent INS Approval Notice (Form I-797)
4) Current resume including the names, addresses, and exact dates of employment for each employer for the past six years
5) Copies of all college/university degrees and transcripts
6) Most recent W-2"s
7) Most recent paystub
8) Foreign address
9) Daytime and evening telephone numbers
10) Social security number
• An EB-2 foreign national must go through the labor certification process unless (she) he can show that it is in the United States" "national interest" to admit the foreign national even though (she)he does not have a job offer. For information on how to file for an EB-2 green card, click here.
ADVANCED DEGREED PROFESSIONALS
• Foreign nationals in this category must have an advanced degree (master"s degree or better) from a U.S. college or university or its equivalent. However, as a practical matter, such persons have a U.S. masters degree or above, or its educational equivalent. The EB-2 candidate must also be sponsored by his/her employer for a position that requires a U.S. master"s degree or its equivalent. Unless the EB-2 candidate can qualify for a National Interest Waiver, (s)he must go through the labor certification process.
• Traditionally, a foreign national could rely on a combination of a U.S. bachelor"s degree plus five years" experience to qualify for EB-2 status. However, conflicting Immigration and Naturalization Service and U.S. Department of Labor regulations have made this approach more problematic. For more information on this issue, click here.
CAN A FOREIGN NATIONAL RELY ON EXPERIENCE
TO QUALIFY AS AN EB-2 IMMIGRANT?
• Foreign nationals who have the equivalent of a U.S. bachelor"s degree plus five years relevant experience have traditionally been able to qualify for an EB-2 "advanced degree professional" immigrant status. Under this scenario, a foreign national from a country with a large backlog of immigrant visa petitions (such as India or the PRC) can file under an EB-2 status and obtain his/her immigrant visa and green card much earlier than an EB-3 immigrant from the same country. This is because there is usually less of a backlog in immigrant visa petitions for EB-2 immigrants versus EB-3 immigrants. However, the recent interpretations by the Immigration and Naturalization Service ("INS") essentially make this approach unavailable. Therefore, until this issue is resolved, foreign nationals cannot rely on their experience to qualify for an EB-2 immigrant visa.
• This is not as bad a news as it sounds. This is because, in many states, it is taking the government two or more years to process a labor certification application. This processing time is even longer if a case is rejected as a reduction in recruitment case and is processed under the traditional labor certification procedure. Therefore, by the time an Indian or PRC national is ready to obtain his/her green card, there may not be a significant delay before (s)he can obtain his/her green card.
• Under INS regulations, an individual can qualify for an EB-2 status if the individual has the equivalent of a U.S. bachelor"s degree plus five years of progressively more responsible work experience in the specialty. The new trend is for the INS to require the term "progressively more responsible experience in the field" to be included in the labor certification application. The U.S. Department of Labor ("DOL"), however, will not approve a labor certification application that includes this requirement. Moreover, the DOL"s position is that bachelor"s degree plus five years" experience is not equivalent to a master"s degree, but rather a doctorate degree.
EB-3 Degreed Professional, Skilled Workers and Unskilled Workers
• The EB-3 category is for foreign nationals with bachelor"s degrees, skilled workers with at least two years of training or experience, and unskilled workers.
• Degreed Professionals
• A foreign national with a U.S. bachelor"s degree or its educational equivalent who is being sponsored for a position that requires a bachelor"s degree to qualify can apply for a green card under the EB-3 category. It is important to note that a foreign national cannot substitute work experience for part of the bachelor"s degree requirement. This is different than under the H1B nonimmigrant visa regulations.
Many foreign nationals who have a U.S. bachelor"s degree plus five years" experience want to apply for a green card under the EB-2 advanced degreed professional category. However, recent INS interpretations have made this approach impractical. For more information on this issue, click here.
CAN A FOREIGN NATIONAL RELY ON EXPERIENCE
TO QUALIFY AS AN EB-2 IMMIGRANT?
Foreign nationals who have the equivalent of a U.S. bachelor"s degree plus five years relevant experience have traditionally been able to qualify for an EB-2 "advanced degree professional" immigrant status. Under this scenario, a foreign national from a country with a large backlog of immigrant visa petitions (such as India or the PRC) can file under an EB-2 status and obtain his/her immigrant visa and green card much earlier than an EB-3 immigrant from the same country. This is because there is usually less of a backlog in immigrant visa petitions for EB-2 immigrants versus EB-3 immigrants. However, the recent interpretations by the Immigration and Naturalization Service ("INS") essentially make this approach unavailable. Therefore, until this issue is resolved, foreign nationals cannot rely on their experience to qualify for an EB-2 immigrant visa.
This is not as bad a news as it sounds. This is because, in many states, it is taking the government two or more years to process a labor certification application. This processing time is even longer if a case is rejected as a reduction in recruitment case and is processed under the traditional labor certification procedure. Therefore, by the time an Indian or PRC national is ready to obtain his/her green card, there may not be a significant delay before (s)he can obtain his/her green card.
Under INS regulations, an individual can qualify for an EB-2 status if the individual has the equivalent of a U.S. bachelor"s degree plus five years of progressively more responsible work experience in the specialty. The new trend is for the INS to require the term "progressively more responsible experience in the field" to be included in the labor certification application. The U.S. Department of Labor ("DOL"), however, will not approve a labor certification application that includes this requirement. Moreover, the DOL"s position is that bachelor"s degree plus five years" experience is not equivalent to a master"s degree, but rather a doctorate degree. Therefore, any labor certification application that includes such a job requirement is excessive and invalid.
•Skilled Workers
• Skilled workers must have two years" experience in a position that requires two years" experience to qualify can apply for a green card under the EB-3 category.
• Top of Page
Unskilled Workers
• A foreign national who does not have a U.S. bachelor"s degree or two years" experience can qualify as an unskilled EB-3 green card. However, because only 10,000 unskilled worker green cards are allotted every year, there is a tremendous backlog. Top of Page
• How to File
A foreign national requesting a green card under the EB-3 category files the Immigration and Naturalization Service"s ("INS"s") Form I-140 with the INS Service Center that has jurisdiction over the foreign national"s place of work. The foreign national can include his/her spouse and dependents under 21 years old on his/her form I-140. For a listing of information required for an I-140 petition,
I-140 PETITION
INFORMATION REQUIRED FROM FOREIGN NATIONAL
Following is a list of information that is required in order to complete an I-140 immigrant petition for alien worker. Please send the information listed below to www.lawinscal.com office to the attention of your case attorney for review.
Information Required:
1) Copy of passport for all family members
2) Copy of I-94 card (front and back) for all family members
3) Copy of most recent INS Approval Notice (Form I-797)
4) Current resume including the names, addresses, and exact dates of employment for each employer for the past six years
5) Copies of all college/university degrees and transcripts
6) Most recent W-2"s
7) Most recent paystub
8) Foreign address
9) Daytime and evening telephone numbers
10) Social security number
Once the I-140 petition is approved and an immigrant visa is available (i.e., there is no backlog of immigrant visas), the foreign national will file an INS Form I-485 to request an adjustment of his/her status from "nonimmigrant" status to "immigrant" status. For a list of information required for an employment-based[[[[ I-485 application]]]],
I-485 APPLICATION INFORMATION REQUIRED FROM FOREIGN NATIONAL
Following is a list of information that is required in order to complete an I-485 immigrant application for adjustment of status. Please send the information listed below to the appropriate Hammond & Associates office location to the attention of your case attorney for review.
Information Required:
1) Birth Certificate
NOTE: We will need a copy of the birth certificate for you an each member of your immediate family applying for adjustment of status with you.
In addition, if your birth certificate is not in English, you will need to provide a translation of the birth certificate.
If a birth certificate is not available then you will need to establish that you attempted to obtain a birth certificate and that a birth certificate is not available.
In addition you will need to submit two affidavits from family members and friends who can vary your birth (i.e. were present at the time of your birth)
Also, please obtain two affidavits in cases where you have a birth certificate, but the birth certificate does not mention your name.
2) Marriage Certificate
NOTE: Please provide a certified copy of your marriage certificate. This must be a certificate (not a marriage license) issued by the appropriate court.
Also, if the certificate is not in English, you will need to provide a translation.
3) Copy of most recent INS Approval Notice (Form I-797)
4) Current resume including the names, addresses, and exact dates of employment for each employer for the past six years
5) Copies of all college/university degrees and transcripts
6) Most recent W-2"s
7) Most recent paystub
8) Foreign address
9) Daytime and evening telephone numbers
10) Social security number
EB – 4 RELIGIOUS WORKERS
Religious workers are also included in the EB-4 category. Many religious workers enter the United States as non immigrants on a [[[[“R” non-immigrant Visa]]]].
In order to qualify for a religious worker under the EB-2 category, the religious worker must be one of the following:
• ministers of religion.
• professionals working in religious vocations or occupations.
• other workers in religious vocations or occupations.
Religious workers must work for qualified US nonprofit religious organizations or at nonprofit religious organizations affiliated with qualified religious denominations.
The applicant must also have been a "member of a religious denomination having a bona fide nonprofit, religious organization in the United States" for the two years immediately preceding application for admission.
a) What is the process for R visa applicants?
Unlike many nonimmigrant visas, the R visa applicant does not have to submit a petition to the INS. R-1 visas may be submitted directly to the consular officer abroad.
b) How long is a R visa valid?
A R visa is initially valid for up to three years. The R nonimmigrant may extend in two year increments not to exceed a total stay of five years.
c) Is a R visa holder"s family eligible for nonimmigrant status?
The spouse and unmarried children (under 21) of the R nonimmigrant are eligible for entry on an R-2 visa, but are not authorized to work.
HOW TO FILE
A foreign national requesting a green card under the EB-4 category files the Immigration and Naturalization Service"s ("INS"s") Form I-140 with the INS Service Center that has jurisdiction over the foreign national"s place of work. The foreign national can include his/her spouse and dependents under 21 years old on his/her form I-140. For a listing of information required for an [[[[I-140 petition]]]].
Once the I-140 petition is approved and an immigrant visa is available (i.e., there is no backlog of immigrant visas), the sponsoring family member will file an INS Form I-485 to request an adjustment of his/her relative"s status from "nonimmigrant" status to "immigrant" status. For a list of information required for an employment-based[[[[ I-485 application]]]].
ADJUSTMENT OF STATUS (I-485)
PROCEDURE FOR HANDLING ADJUSTMENT OF STATUS CASES
Below is a step-by-step procedure explaining how your Adjustment of Status case will be processed. You may begin steps 1 and 2 upon the filing of your Labor Certification. We do not suggest proceeding to steps 3 and 4 until your Labor Certification has been approved and your priority date is "current". Please follow the procedures exactly to insure both efficiency and effectiveness in your case. If you have any questions, please contact the attorney and/or paralegal handling your labor certification or I-140 case.
STEP #1:
Please compile the following documentation for yourself and each family member who will be immigrating with you i.e. spouse and children born abroad. You will note that some of these documents may already be in our files, however, we may have received those earlier copies from a variety of sources and are not always able to determine the chain of custody demanded by the 485 process therefore we are requesting that you provide all documents listed below. Please mail it at your earliest convenience to the attorney handling your labor certification and immigrant petition case.
a). A copy of all approval notices received from the INS
b) A copy of all I-94 cards (received upon entry into the U.S.); I-20"s (issued if you
were ever in F-1 status in the U.S.); IAAP"s (issued if you were ever in J-1 status in the U.S.)
c) A copy of every page of the passport
d) A copy of your marriage certificate
e) A copy of the divorce decree from any previous marriages of yourself or your
spouse
f) A copy of the birth certificate for each family member adjusting status with you
g) A copy of your income tax returns for the past three years
Please Note: If a document is not in English, then the applicant must provide an English Translation.
Document Translation instruction
1. For any documents that are not in English, you must provide an English translation.
Exception: You do not need to translate your passport if the passport is written
predominately in a language other than English.
2. Each translation must include a direct translation of every word which appears on the original
document, including the translation of any official seal or stamp that is on the document.
3. The translation must also match the visual format of the document. For example, the
translation of an official seal must appear in the same place on the page as where the seal
appears on the actual document.
4. You may do your own translation if you read and write both English and the language in
which the original document.
5. The INS does not initially require that you use a professional translation service; however,
your translation must be accurate. If there appears to be errors in the translation, the INS
may then require you to send your documents to a translation service.
6. Once you have completed your translation, add the following statement to the bottom of
the translation:
I hereby certify that this is a true and accurate translation of this document from insert the language the document is written in to English. I am qualified to perform this translation
because I am fluent in both insert the language the document is written in and in English.
Dated (insert the date
(Your Signature)
(Print your name)]]]
o TO OBTAIN A COPY OF A BIRTH CERTIFICATE, MARRIAGE CERTIFICATE OR DIVORCE DECREE
o ALTERNATE DOCUMENTATION (This is necessary when a Birth Certificate is not available or when the Birth Certificate does not list the name of the child or both names of the parents.)
STEP #2
• Complete Form G-325, Biographic Information, on yourself and on behalf of each family member who will be adjusting with you.
Please Note: This form is not the only form that has to be filed with the I-485 application; however, this form is comprehensive and provides us with the information we need for all the forms. Although the INS does not require the G-325 form for children under the age of 14 we need the information in order to complete the necessary forms.
Please Note: In order to access the G-325 form you must have "Adobe Acrobat Reader" software. If necessary, you may first download this free software.
o FORM G-325
After you have completed steps 1 and 2, please mail all to the attorney handling your labor certification or immigrant petition (I-140) case.
STEP#3:
Complete your medical examination IF your Labor Certification has been approved and your priority date is current. To obtain the name of an INS doctor in your area you may call 1-800-375-5283.
DISCLAIMER: The medical examination results must be no more than one year old at the time that we file the I-485 Adjustment of Status. Therefore, we recommend that you do not complete the medical examination until your Labor Certification petition is approved and your priority date is current. [If you complete the medical examination you do so at your own risk keeping in mind that priority dates do not move in any consistent manner.]
To obtain a medical examination form, please email your request to
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
and a form will be mailed to you.
o MEDICAL EXAMINATION INSTRUCTIONS
STEP #4:
Obtain the required ADIT-style photographs for your application. Keep in mind that two photographs are needed for the I-485, two for the employment authorization document, and two for the advance parole authorization. If you are not sure whether you need the employment authorization document or the advance parole authorization, please contact the attorney handling your labor certification or immigrant petition.
o PHOTOGRAPH INSTRUCTIONS
STEP #5:
Once your Labor Certification petition has been approved, you will receive a phone call from the attorney handling your case, normally within a week to 10 days of receipt of the approval notice. During that phone call, you will discuss the I-485 process and the attorney will be able to answer any questions you may have.
MISCELLANEOUS ISSUES IN ADJUSTMENT OF STATUS
• COMPARISON OF ADJUSTMENT OF STATUS VERSUS CONSULAR PROCESSING:
Adjustment of status is the process whereby a foreign national obtains permanent residence while physically present in the United States. In contrast, consular processing is the procedure for obtaining permanent residence at a United States Consulate outside of the United States.
• MEMO COMPARING ADJUSTMENT OF STATUS AND CONSULAR PROCESSING
Please Note: If you are interested in doing consular processing, contact the attorney handling your labor certification or immigrant petition case.
EMPLOYMENT AUTHORIZATION:
After a foreign national files the Adjustment of Status application he can continue to work on the basis of his H or L nonimmigrant status assuming that status has not expired. Adjustment of status applicants also have the option of filing for an Employment Authorization Document (EAD) either at the time of filing the I-485 or anytime after obtaining the I-485 Receipt Notice. In essence, the applicant needs either the H or L nonimmigrant status or the Employment Authorization Document but does not need both. However, an adjustment applicant with a valid nonimmigrant status may want to obtain an Employment Authorization Document to allow him to work an additional job.
The spouse and children of the adjustment of status employee may obtain an Employment Authorization Document either at the time of filing the I-485 or anytime after obtaining the I-485 Receipt Notice. As such, the spouse and children can work for any employer.
A foreign national can extend his H or L status even after filing the I-485 application.
• TRAVEL DURING THE ADJUSTMENT OF STATUS PROCESS
Historically, if a foreign national left the United States after filing the Adjustment of Status application without first obtaining Advance Parole then the INS viewed the applicant as having abandoned the I-485 application. As such, once foreign national returned to the United States he would have to re-file the I-485 application. Effective July 1, 1999 the INS announced that a person could travel after filing the Adjustment of Status application if he had either of the following:
• A valid H or L visa in the passport, or
• Advance Parole authorization
If a person applies for advance parole (either because he does not have a valid H or L visa or simply because he prefers to have advance parole) then the advance parole authorization will be valid for a one year period and will permit multiple entries into the United States.
WARNING: If a person is subject to the 3/10 year bar based upon unlawful presence then he is not permitted to travel and return to the United States even if he has advance parole authorization. Warning: The INS issues Advance Paroles without reviewing whether a person may be subject to the 3/10 year bar. In fact, the advance parole document itself provides the following warning:
If after April 1, 1997, you were unlawfully present in the United States for more than 180 days before applying for adjustment of status, you may be found inadmissible under section 212(a)(9)(B)(I) of the Act when you return to the United States to resume the proceedings of your application.
Sponsoring a Foreign National for a Permanent Residency Green Card
Sponsoring through “Labor Certification”
• LABOR CERTIFICATIONS
The labor certification process is a typical method for an employer to sponsor a foreign national for permanent resident status in the United States (i.e., the employer sponsors the foreign national for a "green card").
• GENERAL REVIEW OF THE LABOR CERTIFICATION PROCESS
• The purpose of the labor certification process is to ensure that foreign nationals do not take jobs away from "qualified U.S. workers", or U.S. workers who can do the job for which the foreign national is being sponsored. In certain limited circumstances, a foreign national need not apply for a labor certification.
The labor certification process is a three step process. The first step is to file a "labor certification application" with the U.S. Department of Labor ("DOL"). This first step demonstrates to the DOL that there are no "qualified U.S. workers" to fill the position being offered the employee being sponsored. The key to this step is the recruitment process. The sponsor must either show that it has advertised for at least sixty days prior to filing the labor certification application; or, for certain jobs advertise for the position being offered for two consecutive Sundays in the local newspaper and interview any qualified applicants. The other alternative is to allow the state where the position is located to advertise for the position. However, this later approach is considerably slower than the first, or "reduction in recruitment" ("RIR") process.
Once the DOL approves the labor certification application, an immigrant visa petition is filed with the Immigration and Naturalization Service ("INS"). This second step focuses primarily upon whether the sponsoring employer can afford to pay the foreign national being sponsored the prevailing wage for the position in question.
Once the foreign national"s immigrant visa petition is approved, (she) he can apply to adjust his/her status from a nonimmigrant status to an immigrant status. This is the final step which results in a sponsored foreign national getting his/her green card. Because a company is sponsoring a foreign national, it may not be necessary for the foreign national to be interviewed by the INS before obtaining his/her green card.
This last step is sometimes delayed for many years while the foreign national waits for an immigrant visa to be available. Only a certain number of immigrant visas are made available to foreign nationals from each country. Certain countries that have many people trying to immigrate to the United States, such as India and the peoples Republic of China, may wait many years for an immigrant visa to be available. To check what date the U.S. State Department is working on for immigrant visas, please click here to check the State Department"s Visa Bulletin.
DETAILED DISCUSSION OF LABOR CERTIFICATION REQUIREMENTS
• The DOL, through the Employment and Training Administration ("ETA"), has provided a form called "Application for Alien Employment Certification." The employer files the Application, in duplicate, with the State Employment Service Agency ("SESA"). The application contains some general information and more importantly, a job description and a list of the requirements for the job. Depending on the state, it is filed either with the local office, or with a special alien employment office of the state Department of Labor.
The SESA performs a ministerial role for the DOL and may also provide guidance to employers to insure that DOL guidelines are followed. Some SESA offices become very heavily involved in the process. Upon the filing of an application with the SESA office, a priority date is assigned. The priority date signifies the alien’s place in the queue for an immigrant visa (or "green card"). The priority date may become important in the later stages of an application.
After the filing of the application with the SESA office, certain challenges or deficiencies may arise. The challenges may be over the wage offered, a requirement imposed, or any number of other items. The employer is given an opportunity to respond to the challenge. Following the response, the SESA may do one of two things. First, it may begin the recruitment phase (discussed below). Secondly, it may refer the file to the Regional DOL for a determination as to the adequacy of the response before commencing the recruitment phase. Once the recruitment period begins, a job order, based on the job description, is placed in the computerized "Job Bank." The state Department of Labor will refer applications to the employer. The job order remains in the state Job Bank for a minimum of thirty days. During that time, advertisements are required to be run by the employer in an appropriate publication referring applicants to the state Job Service. The employer is also required to post the position internally.
It is sometimes possible to bypass the advertisement using the "Reduction in Recruitment" (or "RIR") process. In order to be successful, an employer must demonstrate a "pattern and practice" of recruitment which proves a shortage of qualified U.S. workers. All new labor certification cases will be analyzed to determine if the reduction in recruitment method can be utilized.
At the conclusion of the recruitment period, the employer files a summary with the SESA showing the results obtained during the recruitment period. The application s then forwarded by the SESA to the Regional Certifying Office of the US. Department of Labor. The regional office then makes a determination based upon all the information provided as to whether or not the job should be certified.
SUMMARY OF KEY ISSUES
• 1) The Job Description Listed in the Labor Certification Forms
The job opportunity must be described without unduly restrictive requirements. Requirements which seem tailored to the alien’s specific education or experience will be rejected. Foreign language requirements will be reviewed very carefully, and an employer must be able to document the business necessity for such a requirement. Any qualification required beyond those normal to the occupation will be scrutinized carefully and the employer will have the burden of providing a bona fide business necessity for such additional qualification.
2) The Prevailing Wage for the Position Offered
The government will make a determination as to the prevailing wage for the job offered. The employer must offer the prevailing wage for the position being offered in the same geographic area. The employer will have the opportunity to meet the prevailing wage if the government determines the wage offer is too low. The employer may also challenge the wage determination and present countervailing evidence.
3) Advertising the Position Being Offered
An advertisement will be placed in a newspaper of general circulation for two consecutive Sundays, or in a professional publication or other national publication, if appropriate, to the particular position. The requirements for the contents of the advertisement are specific, and will include a description of the job, the employer’s requirements, the wage, and a referral to the state Job Service. This type of advertisement is not necessary, however, if the employer can show a "pattern and practice" of recruitment over the six months prior to filing the labor certification application.
4) Responses to Resumes Received during Recruitment Phase
As part of the application, the employer certifies that the job opportunity has been and is clearly open to any qualified U.S. worker. The employer is responsible for keeping a record of all applicants, and documenting why they are not available or qualified for the position, if that is the case. Where an applicant is clearly unqualified from his or her resume, then they may be so informed by letter. If they are not clearly unqualified for the position, they must be interviewed. The labor certification will not be issued if there is a qualified U.S. worker available for the job, whether or not the alien is more qualified.
5) Posting and Notice During the Recruitment Process
Notification to a union representative or bargaining agent that a labor certification application has been filed must be made if a union exists for workers in the classification and area in which the alien is to work. If no union exists, a notice must be conspicuously posted at the job site. The notice must contain a description of the position as well as the salary offered. The posting of wage information is contrary to practices and policies of many employers. However, there is no waiver available for this requirement.
• THE ROLE OF THE SPONSORING EMPLOYER, THE FOREIGN NATIONAL AND THE ATTORNEY
• 1) The Sponsoring Employer"s Role
The employer has ultimate responsibility for the application and process. The employer must provide clear and complete information, review and sign prepared documents, review resumes from prospective applicants and interview persons who appear qualified.
2) The Foreign National"s Role
The foreign national is merely the beneficiary of the process. They must provide information relating to their background and sign the application. They may be kept informed of the process but they are not to be directly involved. They may not be involved in reviewing resumes or rejecting potential workers.
3) The Attorney"s Role
Attorney’s role is to apply the constantly changing laws and regulations in this area to the particular facts in each client’s case. The attorney will help analyze the possibilities of a successful application. The attorney will also help prepare a realistic and accurate statement of qualifications and meet other requirements. The attorney guide the employer through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses. The attorney, of course, cannot guarantee what the results will be of any particular test of the job market.
HOW TO FILE
There are 3 steps to obtaining a Green Card through Employer Sponsorship:
1. Labor Certification through the PERM process. 6-20 months.
Un-Audited Cases: 6-7 months.
Audited Cases: 20 months from the audit.
2. I-140 Immigrant Petition for Alien Worker. 3-8 months.
3. I-485 Application to Register Permanent Residence. 12-24 months.
PERM Overview:
PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment.
To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.
d. The employer must be prepared to hire the foreign worker on a full-time and permanent basis.
e. There must be a bona fide job opening available to U.S. workers.
f. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker"s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.
g. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Form of Application
The U.S. employer requests a permanent labor certification by completing an Application for Permanent Employment Certification ("ETA Form 9089"). This application describes the job duties, educational requirements, training, experience, and other special capabilities that the alien must possess to do the work, and a statement of the prospective alien"s qualifications.
Applications that are submitted by mail must contain the original signature of the employer, alien, and preparer (if applicable) when they are received by the processing center. Applications filed electronically must, upon receipt of the permanent labor certification issued by ETA, be signed immediately by the employer, alien, and preparer (if applicable) in order to be valid.
Prevailing Wage Requirements
Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the State Workforce Agency ("SWA") having jurisdiction over the proposed area of intended employment. The U.S. employer is then required to include the following prevailing wage information on the ETA Form 9089:
h. The prevailing wage;
i. The prevailing wage tracking number (if applicable);
j. The SOC/O*NET (OES) code;
k. The occupation title;
l. The skill level;
m. The wage source;
n. The determination date; and
o. The expiration date.
The proposed wage for the alien must at least be equal to this prevailing wage.
Pre-Filing Recruitment Requirements
All U.S. employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A pre-certified occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
Professional Occupations
The employer must recruit under the standards for professional occupations set forth in 20 CFR §656.17(e)(1) if the occupation involved is on the list of occupations (published in Appendix A to the preamble of the final PERM regulation) for which a bachelor"s or higher degree is a customary requirement. The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the Certifying Officer prior to rendering a final determination.
Mandatory Recruitment Steps
The requirement of a job order and the requirement of two print advertisements are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process (described below).
The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application.
Job Orders
The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application will serve as documentation of this step.
Advertisements in Newspaper or Professional Journals
The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. If the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. The advertisements must satisfy the specific requirements contained in the regulations, which are described below.
If the job involved in the application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Documentation of this step can be satisfied by providing a copy of the page in which the advertisement appeared.
Additional Recruitment Steps
The employer must also select three additional recruitment steps from the alternatives listed below:
p. Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
q. Employer"s website. The use of the employer"s website as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
r. Job search website other than the employer"s. The use of a job search Web site other than the employer"s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements mentioned above can serve as documentation of the use of a website other than the employer"s.
s. On-campus recruiting. The employer"s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college"s or university"s placement office naming the employer and the date it conducted interviews for employment in the occupation.
t. Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
u. Private employment firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
v. Employee referral program with incentives. The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
w. Campus placement offices. The use of a campus placement office can be documented by providing a copy of the employer"s notice of the job opportunity provided to the campus placement office.
x. Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer"s advertisement.
y. Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer"s text of the employer"s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application.
Nonprofessional Occupations
If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.
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