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There are several ways of applying
for US permanent residence (or "green card" status).
The most common employment-based method is through labor certification.
Labor certification is an official government finding that
willing and qualified U.S. workers are not available to fill
the position in question and that employment of a foreign
national will not adversely affect the wages and working conditions
of similarly situated US workers. As of March 28, 2005, all
labor certification applications must be filed in accordance
with the Department of Labor's (DOL's) newly issued PERM regulation.
PERM
Under PERM labor certification,
the DOL is wholly responsible for the review and adjudication
of labor certification applications, and the State Workforce
Agencies are no longer involved in the review process. Preparation
of the labor certification application package, even under
PERM, will remain complex and will take more preparation time
than the typical nonimmigrant (H or L) petition. When complete,
the labor certification application will be submitted electronically
to a national DOL processing center. Electronic filing should
greatly reduce the number of reoccurring backlogs in the queue,
resulting in much shorter processing times. The date of submission
of the online form will serve as the priority date for the
entire permanent residency process (i.e., one's place in the
green card queue).
The DOL will carefully review
the labor certification application for completeness and adequacy.
The DOL may perform an audit of the application and request
that documentation of the application be submitted. The online
system may randomly select cases for audit as well. When review
is complete, the DOL will either issue its approval or other
decision based on the merits of the application. Approved
applications will be returned to attorneys handling the case,
and both the employer and the employee will be required to
sign the approved application before it can be used in the
second stage of the process.
I-140 Immigrant Petition
Once the labor certification application
is certified, it provides the basis for the company to move
to the second stage of the process and file an I-140 immigrant
petition with the US Citizenship and Immigration Service (CIS).
BAL prepares the I-140 and supporting documentation for the
company. CIS determines the "immigrant category"
of the case and adjudicates the I-140 petition; the processing
times vary depending on the service center jurisdiction.
I-485 Application for Adjustment
of Status to Permanent Residence
The I-140 petition provides the
basis for the employee's I-485 application for adjustment
of status (AOS) to permanent residence., The employee, along
with his/her dependents, can file his or her I-485 application
with the I-140 or after the I-140 is filed, as long as his
or her "priority date" is current, "Priority
dates" are the queuing system for cases under an immigrant
quota. At present, certain foreign nationals petitioning under
employment-based categories are required to wait for their
priority dates to become current in order to submit their
AOS applications. The US Department of State issues a monthly
visa bulletin that indicates which countries and categories
fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html.
A 'C' on the charts in the middle
of the bulletin means that the category is "current"
and there is no need for applicants born in that country to
wait to file an AOS application. If a date is indicated, a
person born in that country (with certain exceptions) must
wait to file the AOS application if his or her priority date
is not current (i.e. his or her labor certification was filed
after that date).
Along with the AOS application,
BAL will also file requests for travel permission (advance
parole) and employment authorization for the employee and
dependents. Once the advance parole application is approved,
the employee and dependents will be able to travel outside
the United States even if they do not have valid nonimmigrant
status. Once the employment authorization document (EAD) is
approved, the employee's dependents will be authorized to
work in the United States. With the approval of the AOS application,
the employee and dependents become US permanent residents
and green cards are issued to them through the mail.
- Employee, with manager's assistance, forwards to
BAL information necessary to begin the case.
- Employee's information and documents are reviewed
and organized.
- Attorney performs legal analysis and develops case
strategy.
- First draft of job notice is sent to employee and
manager for approval.
- BAL exchanges drafts and consults with the employee
and manager until the manager approves a final job
notice.
Once the job notice is approved,
- Obtain job/wage classification from SWA (State
Workforce Agency) (3-4 weeks).
- Obtain evaluation of academic degree (if necessary).
- Initiate internal company posting and obtain confirmation
(3 weeks).
- Employer conducts recruitment (30 days must expire
after the required requirement before the application
can be filed)
- Employer provides recruitment results to BAL
- BAL assembles recruitment documentation package
to be maintained according to PERM.
- Help employee draft and obtain reference letters.
- Prepare final form for employee and company.
- Prepare company's recruitment letter.· Final
check of all documents and letters.
- Labor certification application form is filed with
DOL.
- DOL reviews and adjudicates the labor certification
- If approved, DOL returns the application to be signed
by the employer and the employee
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Once the labor certification is approved, BAL will:
- Prepare forms for company.
- Prepare company's employment letter.
- Obtain final forms and letter signed by company.
- Final check of all documents, forms, and letters.
- I-140 application is filed with CIS.
- CIS examines position requirements, determines
if applicant meets all requirements, and assigns applicant
a preference category.
- I-140 application is adjudicated by CIS.
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- If not eligible to file with the I-140, BAL tracks
priority dates of cases subject to quota.
Once an employee has a current priority date, BAL will:
- Provide final advice to employee to gather required
documents and medical exam.
- Prepare final forms for employee and company.
- Get final forms signed by employee.
- Assemble package with all documentation.
- Final check of all documents, forms, and letters.
- File I-485 and requests for advance parole and
employment authorization documents.
- AP (advance parole) approved and received.
- Employee and dependents can now travel outside
the US
- EADs approved and received for employee and dependents.
- Employee's dependents are now authorized to work
in the United States
- Employee and dependents are now permanent residents.
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