Outline On Becoming A Permanent Resident Through Employer Sponsorship : Labor Certification

This permanent residence process is comprised of three phases: the labor certification, the immigrant visa petition, and the final application for permanent residence. The following is a summary of the major requirements in each of the three phases. This outline is not a substitute for legal advice, which will vary according to the circumstances of individual cases.

Labor Certification

A "labor certification" is certification by the United States Department of Labor that the employer has tested the labor market (usually by means of a three-day newspaper advertisements) and has found a shortage of qualified, available U.S. workers for the job in question. Any job requirement that is not considered a "normal" minimum requirement of the occupation in question may need to be justified as a "business necessity" of the employer. Also, if the employee is currently working for the sponsoring employer, any requirements that the employee did not have on his or her first day of work with the employer normally may not be listed as job requirements. In addition to running two advertisements in a newspaper of general circulation or in a professional journal, the employer must post a Notice of Job Opening at the job site, and conduct additional recruitment to show that it has searched for qualified U.S. workers.

A good faith effort to evaluate U.S. workers must be shown, and this may involve interviewing some or all of the applicants. However, this is only a test of the labor market -- it is never necessary for the employer to discharge the sponsored employee as a result of this process. Assuming that none of the applicants is a qualified and available U.S. worker, final documentation of the recruitment efforts is electronically filed with the Department of Labor. A successful application documenting the results of the recruitment efforts and establishing that qualified U.S. workers are not available will result in the issuance of a labor certification.

PERM Program

The Department of Labor has replaced the former RIR program with a new on-line process, referred to as PERM, which is currently in effect. It is similar to the RIR process except that it is done on-line (similar to the current LCA process for the H-1B's) and takes a few months instead of years. It requires that the employer have recruited during the past six months, but instead of sending all of the recruitment documents to the DOL the employer (or its attorney) will keep them in a file and will attest that it has conducted the recruitment, subject to an audit.

Immigration Visa Petition

The second step in the permanent residence process is the immigrant visa petition. Upon receiving an approved labor certification, an immigrant visa petition must be submitted by the employer to the CIS Regional Service Center. The purpose of the immigrant visa petition is to establish that the job in question has been certified by the Department of Labor and that the beneficiary of the petition (the employee) has documents showing that he or she meets all the minimum job requirements. The immigrant visa petition also must establish which of the employment-based immigrant categories the beneficiary qualifies to immigrate under, and must establish that the employer has the financial resources to pay the offered salary, and had such resources as of the time the labor certification was initially filed. This step takes 3-12 months. When backlogs ("retrogression") of visa numbers occur, it can take months or years before a visa number becomes available. A visa number must be available or "current" before the green card application can be filed.

At this stage of the process it will also be necessary to decide on whether you would like to do adjustment of status in the U.S or consular processing in your home country.

Concurrent Filings

It is now possible to file the permanent residence application at the same time (concurrently) that you file the I-140 immigrant visa petition (assuming the visa number is "current"). This can be advantageous because it allows green card "portability" (transfer to a new employer without redoing the LC) sooner, allows the employee to apply for work authorization, and may result in faster processing times.

Considerations on Choosing Where to Apply for the Visa

The Adjustment of Status application consists of filing the green card, work authorization, and travel document applications, and supporting documentation, and having a medical exam performed in the U.S. It can take anywhere from 6-24 months or more to adjudicate. You do not need to leave the U.S.

Consular Processing is done abroad, usually from the home country consulate or country of last residence abroad. This usually entails submitting an application to the consulate, obtaining police records from all places of residence since the age of 16, and traveling abroad for a medical exam and an interview (both the exam and the interview will be completed in one trip). The processing time for consular processing can vary from consulate to consulate, but in some cases it can be faster than doing adjustment of status.

If you select consular processing abroad on the I-140 but then change your mind when the I-140 is approved, you can simply proceed to file the adjustment application as if you had originally selected adjustment of status. However, if you select adjustment of status on the I-140 petition and then want to do consular processing you will need to file a separate petition to request the change. This will entail filing Form I-824 with INS to request that the case file be retrieved from the National Visa Center back to INS. This request can cause up to a one-year delay in the immigrant visa application.

Another consideration is the “portability” or transferability of the green card process, which can only be done in the adjustment context. For example, if your I-485 adjustment application has been pending for over six months, you may be able to seek and initiate new employment without having to start the green card process again. (You would need to have a new job offer in a similar position in the same industry as your prior sponsorship.) Unfortunately this option is not available to those who are doing their green card process from abroad as "consular processing." In that case the green card sponsorship will have to be undertaken anew by the new employer, after an H-1B transfer.

Yet another factor is whether the employee is running out of the six years of H-1B time. If s/he is close to the five year mark, it may be better to elect adjustment of status and apply for a “seventh year H-1B extension,” which is available after the labor certification has been pending for 365 days, and the six year H-1B limit has been reached.

Also, because of national security considerations, it may become more difficult for individuals from certain countries to obtain immigrant visas abroad, or there may be delays in connection with such applications. For this reason adjustment of status may entail fewer problems.

Finally, any applicant who has status gaps, unlawful presence, any type of law enforcement or immigration problem or questions about eligibility for the green card, may want to consider adjustment over consular processing. This is because, if there are problems, you can usually continue to work while you iron out the problems and even appeal an adverse decision, if you are still in the U.S. However, where you have chosen consular processing, it is more difficult both logistically and legally to overcome a consular denial.

Final Application For Permanent Residence

The third and final step towards permanent residence in the United States is the employee's application for permanent residence. The employee's eligible family members (spouse & minor unmarried children under 21) should also apply for permanent residence at this time. If the applicant is in the United States, the adjustment application is submitted to the Regional CIS "Service Center." An interview of the applicant may be required, but is usually waived. If the employee is applying abroad for an "immigrant visa" he or she and the family members become permanent residents after receiving the immigrant visa packet and subsequently being admitted at a U.S. port of entry. Whether the employee is applying for "adjustment of status" in the United States or for an "immigrant visa" abroad, it will be necessary for the employer to confirm by letter that it continues to offer the employee the job described in the approved labor certification. The processing time varies from six months to two years or more (for adjustment of status); and three to eight months (for immigrant visa processing).

Processing Time Summary

Our current estimate of the processing time for a labor certification is approximately three to six months. The immigrant visa petition currently takes from three to twelve months. If there is no backlog in the annual quotas on permanent residents, the final permanent residence application can be filed concurrently along with the immigrant visa petition (as soon as the labor certification is approved) or it can be filed immediately after the immigrant visa petition is approved, and the processing time abroad will be from three to ten months (consular applications) or six to twenty-four months (projected time for adjustment applications). Also, natives of certain countries (such as the Philippines, the People's Republic of China and India) are sometimes subject to a further wait due to those countries' high use of their annual immigration quotas.

If you should have any questions regarding the content of this outline, do not hesitate to give our office a call.