Overview
Although there are important exceptions, securing permanent residence on the basis of an offer of employment normally has three components. The first component involves filing for a labor certification (ETA-9089) from the Department of Labor (DOL). This certification establishes that the permanent employment of a foreign worker will neither displace qualified US workers nor adversely affect their wages and working conditions. The date the labor certification application is filed sets a worker’s “priority date.” This is the day a worker ‘gets in line’ with all the other workers who are seeking permanent residence. This date is used by the US Citizenship & Immigration Services (USCIS) and the US Department of State (DOS) to determine when a worker can complete the effort to be granted permanent residence.
When the certification has been obtained from DOL, the sponsoring employer undertakes the second step by preparing and filing an I-140, Immigrant Visa Petition, with the USCIS. This petition demonstrates that the foreign worker is qualified for the position described in the approved labor certification and that the employer can afford to pay the salary offered to the foreign worker. The third and final step in the process is either (1) preparing and filing an I-485 Application for Adjustment of Status for workers who are lawfully in the US or (2) processing an immigrant visa application at an appropriate US consulate. Consular processing is appropriate for workers who are outside the US or for those who are either not eligible to adjust their status in the US or who decide it may be preferable to complete the process abroad. Taking either of the steps for this third phase (filing for adjustment of status or scheduling an appointment for an immigrant visa at a US consulate abroad) depends on whether an applicant’s priority date is “current” (i.e., available according to the Visa Bulletin issued by the DOS). (The issue of priority dates is discussed in greater detail below.) If the priority date is current, the immigrant visa petition and the adjustment of status (steps 2 and 3) may be filed at the same time. The decision on whether to take advantage of this concurrent filing will be made after the labor certification has been approved. If adjustment of status is available to the worker, it is almost always advantageous to file it with the immigrant visa petition.
The First Component: Filing the Labor Certification
With certain exceptions, foreign nationals who are sponsored for permanent residence in the US must have a job offer that DOL has certified will neither displace qualified US workers nor adversely affect their wages and working conditions. Some workers can bypass the labor certification process because they are performing work in “pre-certified” occupations like nursing or physical therapy. Others can bypass this step because their qualifications put them at the top of their fields, and some, who are employed as teachers in institutions of higher education, can benefit from “special handling,” which uses prior recruitment and provides other significant advantages. Generally, however, filing a labor certification is the route used by most workers to secure permanent residence in the US.
The position cannot impose any unduly restrictive requirements or contain any requirements that seem tailored to the foreign worker’s specific education or experience. Requirements that appear to be beyond those normal to the occupation, such as many foreign language requirements, will be reviewed very carefully by the DOL, and an employer will have to prove a bona fide business need for each special qualification or requirement. Jobs that require two years of experience or training or more are considered to be skilled positions, but those requiring less than two years experience or training are considered unskilled, something that can result in significant delays in ultimate processing.
The standard for judging whether or not a labor certification may be approved is that no “qualified US worker” who possesses the required minimum qualifications for the job is ready and willing to accept the position. The term “qualified US worker” includes US citizens and nationals, lawful permanent residents, as well as individuals granted asylum and refugee status.
The DOL’s process requires the employer to test the market through extensive recruitment intended to identify qualified US workers who are available and willing to take position. If the recruitment campaign produces a qualified US worker who is available and willing to take the position, the employer cannot proceed on the case.
Special Handling Labor Certifications for University Professors
Unlike regular Labor Certification process for professional workers described above, colleges and universities may sponsor a college-level teacher for permanent residence even if other qualified U.S. workers apply for the position as long as it has been established through a competitive recruitment that the foreign national is more qualified than the U.S. applicants. It is vital that the competitive recruitment was conducted on a national level and included at least one print ad. Assuming the criteria for the competitive recruitment is met, the employer files an application to through the DOL’s PERM program to obtain the labor certification.
Streamlined Process for Nurses and Physical Therapists
Because the DOL has recognized that staffing for certain professions is particularly difficult, it established “Schedule A” which lists two professions that are hard to fill, i.e., Registered Nurses and Physical Therapists. Under Schedule A, employers seeking to fill positions for Registered Nurses or Physical Therapists, must prepare the labor certification form, but they are not required to test the labor market and prove that there are no U.S. workers qualified and available to fill the position. The labor certification form is submitted with the paperwork for the Immigrant Visa Petition discussed below.
The Second Component: Filing the Immigration Visa Petition
After the labor certification has been approved by the DOL, the immigrant visa petition (Form I-140) must be filed with the USCIS within 180 days. The I-140 petition requires the employer to document that (1) DOL has certified the job offer (i.e., approved the labor certification application); (2) the foreign worker is qualified for the position (as documented by appropriate educational credentials and letters of reference, depending on what the labor certification application states is required for the position), and (3) the employer can afford to pay the offered wage (as shown by tax records, audited financial statements, or, in some cases, a letter from the employer’s chief financial officer). As noted above, the petition must show that the employer had the ability to pay the offered wage as of the time the labor certification was filed as well as when the I-140 is filed. A shortcoming at either time, or at any time in between, can cause the USCIS to deny the I-140 petition.
The Third Component: Applying for Permanent Resident Status
The worker may obtain permanent residence by either filing for adjustment of status in the US or seeking issuance of an immigrant visa from a US consulate abroad. Both of these steps depend on the worker’s “priority date” being “current” or available.
As we noted above, a worker secures a priority date when the initial paperwork for permanent residence is filed. A priority date is secured by the filing of an application for labor certification with DOL, or, in cases where the labor certification is waived, by the filing of an immigrant visa petition with the USCIS. Because there are generally more people who want to immigrate to the US than can do so under the annual limits set in the Immigration & Nationality Act, a backlog develops each year and spills over into the next year, as people wait their turn to complete the process. The DOS announces the ‘current’ dates for visa processing each month in its Visa Bulletin; this bulletin is available on the DOS website and confirms the dates of cases that can be filed in any given month for processing. The dates are set for each category and are also broken down by nationality for countries with high rates of immigration to the US.
Before a worker can file for adjustment of status or be issued an immigrant visa, the worker’s priority date will have to be available or current. If it is not current, the worker will have to wait to file the adjustment of status paperwork or to receive the immigrant visa from a US consulate. This can cause significant problems if the available amount of time in H-1B nonimmigrant status is limited. Under certain circumstances, depending on when the case was initiated and its present stage, an employer may be able to extend the worker’s H status. Sometimes, however, this option is not available and workers have to leave the US and wait to conclude their permanent residence case abroad.
Adjustment of Status
If a worker’s priority date is current, he or she may file his or her application for Adjustment of Status (I-485). This application is intended to document that the worker is legally in the US and is not excludable due to communicable disease, criminal convictions, etc. Workers who are eligible to file for adjustment of status can also secure employment authorization, allowing them to work while the process moves forward. Sometimes an adjustment case cannot be filed if the individual is not legally in the US or if the individual has violated his or her status in some way.
In addition, the worker (and any family members who will be applying) will need to have a physical examination by a USCIS approved physician to assess health with specific statutory concerns in mind, e.g., TB, AIDS, the use of illegal drugs, whether the individual has had certain vaccinations, etc. This examination should be completed after consulting with counsel to make sure that it is not completed too early. The worker (and family members who will be applying) will have to provide fingerprints, letters confirming employment, birth certificates, etc. We will provide more detailed information about these requirements at the proper time.
Once the I-485 application is filed with the USCIS, neither the worker nor any family member may travel outside the US without advance permission from the USCIS unless the applicant holds valid H-1B or L status. This is very important. We must be advised of all travel plans well in advance of any trips to help you avoid problems.
Once USCIS has finished its background check, determined that the application is complete, and verified that the employee’s “priority date” remains current, USCIS will either simply approve the case or schedule an interview at the local USCIS District Office. If the priority date is not current, the file will be set aside and will be reexamined when the priority date again becomes current. Sometimes, because of the time taken to process these cases, the employee may need to update his or her fingerprints or medical examination before the case can be approved. USCIS will notify the individuals if this is necessary.
Once the case is approved, the worker may not receive his or her “green card,” i.e., Form I-551, the Permanent Residence Card, for several months. Owing to the significant delays in the processing of adjustment cases, Congress enacted legislation in 2000 called the American Competitiveness in the 21st Century Act (AC21) to enable some workers whose adjustment applications have remained undecided for 180 days, to undertake substantially similar employment with a new employer. Generally, workers should not change employers under this exception until after the underlying I-140 has been approved and without guidance from counsel.
Consular Processing
Immigrant visa processing through a US consulate follows the general pattern of adjustment filings. Once the I-140 case has been approved, the DOS’s National Visa Center (NVC) will send out a fee bill for the case. Once this is paid, the NVC will request certain paperwork and, once the paperwork is supplied, will send the file to the proper consulate for an interview. If the interview substantiates the offer of employment and that the worker is eligible for admission to the US, an immigrant visa is issued, and the worker becomes a permanent resident once he or she uses that visa to enter the US.
The one significant advantage of consular processing is the fact that while the consulate cannot issue the visa until the priority date is current, all preliminary processing can be completed beforehand. Although the USCIS is experimenting with allowing early filings, generally, adjustment filings cannot be filed with the USCIS for processing until the priority date is current. There are other considerations to evaluate in selecting one route over the other, and we will review these with the employer and the sponsored employee closer to the time a decision must be made.
Final Considerations
Our role is to advise and assist the employer and the sponsored employee in understanding and complying with the ever-changing laws and regulations, in light of the facts in the particular case being processed. This is a particularly important responsibility because many of the requirements for a successful labor certification application are counter-intuitive to “real world” employment recruitment. After all, the recruitment is for a “vacancy” that is filled with the foreign worker. We will help the parties to assess the true minimum requirements for the position, prepare a realistic and accurate statement of qualifications that meet the pertinent requirements, and ensure that recruitment is proper under the legal requirements. We will shepherd the employer and the foreign worker through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses, and ensuring that the worker can document his or her qualifications for the position.
