1. What are the steps to get a green card for an employee through labor certification?
2. What is a labor certification?
3. How does a company get a labor certification?
4. What goes into a labor certification application?
5. How does the government know whether there are U.S. workers to fill the job?
6. How does PERM labor certification application processing work?
7. Are there alternatives to pursuing a labor certification?
8. What is an immigrant petition?
9. What’s the difference between an immigrant petition and a labor certification application?
10. What goes into an immigrant petition?
11. What is an immigrant visa number?
12. What is the significance of EB preference categories?
13. What is the meaning of the "cutoff dates" published in the Visa Bulletin?
14. What is meant by "retrogression"??
15. What is a Priority Date?
16. How do I interpret the dates posted in the Visa Bulletin?
17. What is meant by "cross-chargeability"?

What are the steps to get a green card for an employee through labor certification?

For most individuals (approximately 75%) who obtain U.S. permanent residence through employment, the steps are:

Step 1 - Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual.

Step 2 - Immigrant Petition (I-140): Once the labor certification application is approved, the company files an immigrant petition with the U.S. Immigration and Naturalization Service (USCIS).

Step 3 - Adjustment of Status (I-485): Once the immigrant petition is approved, the employee can apply for adjustment of status to U.S. permanent resident (for him/herself and his/her spouse and/or children, if applicable).

STEP 1: The Labor Certification Application

What is a labor certification?

A labor certification is an official government finding that (1) no U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position; and (2) the individual’s employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers.

How does a company get a labor certification?

The company files a PERM labor certification application (Form ETA 9089) with a U.S. Department of Labor processing center.

What goes into a labor certification application?

The application is a formal offer of employment. The offer of employment contains specific information about the job, including a description of the duties and responsibilities and the minimum qualifications a person must have in order to adequately perform the job.

The application also includes information about the qualifications of the candidate to whom the company wishes to offer the job. This candidate may be in the United States already (for example, on an H-1B visa), or the candidate may be outside the U.S. The candidate must possess at least the minimum qualifications for the job as set forth in the application. The statement includes details about the candidate’s educational and work-related background. Copies of the candidate’s educational degrees and transcripts and letters from previous employers verifying the candidate’s experience are needed to verify the candidate’s qualifications.

How does the government know whether there are U.S. workers to fill the job?

A test of the labor market must show that there are insufficient U.S. workers available who are interested in and willing to take the job. The employer must conduct this test by providing evidence of recruitment that meets the DOL requirements and was conducted during the six months prior to filing the application.

How does PERM labor certification application processing work?

Berry, Appleman & Leiden files an online application using Form 9089. The application goes directly to the DOL processing center for review. DOL may approve or deny the application, or may opt to order an “audit” of the application in which DOL requests documentation showing that the required recruitment steps were properly completed, and that the requirements stated for the position are normal in the industry and are necessary to do the job. Berry, Appleman and Leiden collects standard support documents and keeps them in an “audit file” that can be quickly provided to DOL if an audit is ordered.

Are there alternatives to pursuing a labor certification?

The PERM labor certification process covers a broad spectrum of occupations and has become much quicker and more reliable than the former labor certification process used by DOL. Most employees will need to go through the PERM labor certification application process, but some will not. For example, high-level employees who are transferred to the U.S. from company offices abroad may be eligible to immigrate without first obtaining a labor certification.

Under the multinational manager/executive classification, an employee with a Ph.D. in his or her respective field, as well as publications and other professional distinctions, may be eligible for “outstanding researcher” immigrant classification, for which labor certification is not necessary.

Also, employees who can demonstrate that they rank at or near the very top of their field nationally or internationally may be eligible for “extraordinary ability” classification; labor certification would not be necessary for these individuals either. Certain jobs and projects have been found to be especially “in the national interest,” and employees working on such jobs may be able to bypass the labor certification process.

The attorneys at Berry, Appleman & Leiden routinely scrutinize and evaluate all new “green card” cases for eligibility for multinational manager/executive, outstanding researcher, national interest/extraordinary ability, or other classifications that might obviate the need for labor certification. The attorney will notify the employee and the company if such a route might be possible.

STEP 2: The Immigrant Petition (I-140)

What is an immigrant petition?

An employer files an immigrant petition on behalf of an employee when the employer wishes to formally sponsor the employee for U.S. immigration. The petition is a formal offer of “permanent” employment (that is, employment of indefinite duration).

What’s the difference between an immigrant petition and a labor certification application?

A labor certification application is an application to the government (specifically, to DOL) asking for official certification that a job exists that cannot be filled by a U.S. worker. An immigrant petition is a petition to the government (specifically, to USCIS) asking the government for permission to hire a specific foreign national to “permanently” fill the job. Most immigrant petitions must be based on approved labor certification applications, because for most jobs, the law requires DOL to find that there is a shortage of U.S. workers for the job.

What goes into an immigrant petition?

The application form, Form I-140, provides information about the company (the “petitioner”), the candidate (the “beneficiary”), and the job offered. The employer must also request on the form that the beneficiary be classified according to a specific preference category.

What is an immigrant visa number?

An immigrant visa number must be immediately available for an individual to obtain permanent residence ("green card") status. U.S. law limits the number of immigrant visa numbers ("green cards") that are available every fiscal year. An individual does not get an immigrant visa number immediately when his/her immigrant visa petition (I-140) is approved. The immigrant visa number is issued only at the time the I-485 adjustment of status application is approved. In some cases, due to agency processing delays or the unavailability of numbers, several years could pass between the time the U.S. Citizenship and Immigration Services (USCIS) approves your immigrant visa petition and the State Department gives you an immigrant visa number.

U.S. law also limits the number of immigrant visas available by country: no single country can use more than 7% of the available visas in each category in a single fiscal year. These are sometimes called the "per country" limits. As a result of the per country limits, you may have to wait longer if you were born in a country with a high demand for U.S. immigrant visas. Historically, India, China, Mexico and the Philippines have been high usage countries, and they have most commonly had the earliest cutoff dates. The number of green cards issued is further narrowed by a person's preference category.

What is the significance of EB preference categories?

All individuals sponsored by employers are in one of the employment-based (EB) preference categories. A person's preference category is determined by the employment position offered, documentation of the credentials qualifying him or her for the position, and the type of case filed for that individual (based on the position's requirements and his or her qualifications). They are called "preference" categories, because the visa numbers made available to the "higher" preference categories can "spill down" to the "lower" preference categories if they are unused.

• The EB-1 preference category is reserved for people who can meet the stringent requirements and prove to the satisfaction of the USCIS that they have "extraordinary ability" in the arts, sciences or business; are employed as outstanding researchers or professors; or are employed as multinational managers/executives who have worked in a managerial or executive capacity abroad and will continue to do so in the U.S. for a multinational company.
• The EB-2 preference category is for persons of "exceptional ability" or persons in jobs that require that they be members of a profession holding advanced degrees. This category includes people who have at least a U.S. Master's degree (or foreign degree equivalent) where the position being offered either requires a Master's degree as a minimum requirement or a Bachelor's degree (or foreign degree equivalent) and at least five years of post-baccalaureate progressively responsible experience. A labor certification is generally required in this category. If the position for which the labor certification is sought does not require a Master's Degree or a Bachelor's degree and at least five years of experience, then even though you have such a degree, you will not qualify for the EB-2 category.
• The EB-3 preference category is for skilled workers, professionals and other workers. This category encompasses individuals holding at least a U.S. Bachelor's degree (or equivalent) where the position offered requires a Bachelor's degree. A labor certification is required in this category.

What is the meaning of the "cutoff dates" published in the Visa Bulletin?

Imagine that when you file your I-485 application, you are getting in line for an immigrant visa (green card status). When there are more individuals "in line" (that is, have filed an I-485 application) for a particular preference category from a particular country than there are green cards or immigrant numbers available for that fiscal year, the category is oversubscribed for that country. In order to regulate the queue and determine whose application can be approved (or who can file an application), the State Department imposes cutoff dates for oversubscribed categories and countries on a monthly basis. Only those whose priority date is on or before the cutoff date can have their application approved in that month. When there is no oversubscription, the cutoff date is simply "Current," meaning that any priority date case can be approved or filed. When the State Department determines that the available visas for a category/country will all be given out, the cutoff date simply changes to "Unavailable." Setting the cutoff dates is a forecast of available immigrant visa numbers compared to the existing or anticipated demand for visa numbers for a particular category/country. When the available numbers appear to exceed the demand, the cutoff dates are moved forward (later in time); when the demand appears to exceed the available numbers, the cutoff dates are moved backward, that is, they are retrogressed.

What is meant by "retrogression"?

Retrogression is when the cutoff date for a category/country moves backward (earlier in time). The State Department retrogresses the cutoff dates when it determines that the previous month's cutoff dates will result in too many applications being approved or filed.

What is a Priority Date?

An individual's place in line for a particular category/country is his/her priority date. This is either the date of filing of the labor certification application or the date of filing of the I-140 preference petition (if no labor certification was required). One's priority date must be current, that is, on or before the cutoff date listed in the Visa Bulletin for his/her preference category and country at two times during the green card process:

1. when the I-485 Application to Adjust Status to Permanent Residence is filed; and,
   
2. when the I-485 is approved, providing permanent resident or "green card" status.

However, until the immigrant visa (or preference) petition (I-140) is approved, the priority date is not official. If an individual has more than one I-140 approved, the individual should be able to use the earlier priority date.

How do I interpret the dates posted in the Visa Bulletin?

As noted above, there are a limited number of immigrant visas available in each preference category, and within each category, no single country can use more than 7% of the available visas. For a number of years, the USCIS took in many more I-485 applications than it approved. As a result, the USCIS built up a tremendous backlog of un-adjudicated adjustment of status cases. The processing delays were so great that USCIS mounted a special "backlog reduction" campaign to reduce the backlog of un-adjudicated cases. These backlog reduction efforts have resulted in much greater usage of visa numbers (after years of low usage), and so demand is far exceeding availability. The visa number usage has been greatest for the countries and categories with the highest demand: India, China, Mexico and the Philippines and all applicants in the EB-3 category, which are now all oversubscribed. When this occurs, the State Department is required to impose cutoff dates and allocate visas in priority date order. Below is a sample chart showing visa availability for individuals in the EB-1, EB-2, and EB-3 preference categories by country of birth for October 2005:

• "current" means that all priority dates are current
• The EB1 (employment based immigrant first preference) category includes "outstanding researchers," multi-national executives and mangers, and "extraordinary ability" persons.
  
• The EB2 category includes persons whose jobs require an advanced degree and "exceptional ability" persons.
  
• The EB3 category includes all other employment-based immigrants.

For the complete visa bulletin issued by the State Department, go to http://travel.state.gov/visa/frvi_bulletin.html.

Employees cannot complete the green card process (be approved for permanent residence) without a "current" priority date.

COMMON SCENARIOS

• Labor certification is approved but priority date is not current (priority date is later than the cutoff date) - An I-140 preference petition can be filed even if the priority date is not current. However, the I-485 (application for an immigrant visa) cannot be filed until the priority date is current.
  
• I-485 is filed and pending and the numbers retrogress to the point where the priority date is no longer current (the cutoff date is earlier than my priority date) - If the I-485 was properly filed, i.e. there was a visa number available at the time it was filed; the I-485 application should remain pending until the priority date is reached. Employment authorization card/s and advance parole/s (travel document/s) can continue to be extended until the I-485 is approved when immigrant visa numbers are available.

Every month the State Department will review the demand for visa numbers and move the dates to regulate the allocation of immigrant visa numbers with in the statutory limits. When an individual's priority date becomes "current," the individual may file his or her adjustment of status application, or if already filed, the application will become eligible for approval if all other conditions for approval are met.

NOTE: Priority dates do not advance forward at the same rate as the calendar. In some months, the date may not move at all, while in others in may move forward by weeks or even months; if demand is higher than expected, the date can move backward even further or may become unavailable.

What is meant by "cross-chargeability"?

The general rule is that individuals are charged to the country they were born in, regardless of nationality. If you were born in, say, Australia, you will be charged to Australia, even if your parents were Indian or Chinese. However, the converse is also true: you will be charged to the country you were born in, even if you have become a citizen of another country. A change in citizenship does not change the country of chargeability. For instance, if you were born in India, you will be charged to India even if you have become a Canadian citizen. However, your spouse or parents may help change the country you are charged to, through the process know as cross-chargeability. Someone is cross-chargeable when they can be allocated to a different country for purposes of immigrant visa availability. There are two exceptions to the rule that you are charged to the country you were born in. Individuals can be charged to their spouse's country of chargeability if their spouse is obtaining an immigrant status at the same time they are. Also, individuals can be charged to their parents' country of birth if their parents were only temporarily residing in the country of their birth at the time they were born.

* All processing times indicated are rough estimates based on current experience. Individual cases can and do vary in processing times, and the general periods vary from time to time.