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The Green Card Application Process and
the Form I-140 Immigrant Petition for Alien Worker

1. The Three Steps of the Employment-based Green Card Application

The immigrant Green Card application typically involves three main steps. First, the employer files a Labor Certification application with the U.S. Department of Labor (DOL). The purpose of this application is to test the local labor market for available U.S. workers. If no qualified and available U.S. workers are located, the job position is certified as open for a foreign worker.

Second, the employer files an form I-140 Alien Worker Petition with the U.S. Citizenship and Immigration Services (USCIS). The purpose of this petition is to verify that the foreign worker has the minimum requirements to fill the open position, and serves to classify the foreign person as eligible for a particular visa category.

Third, on the basis of the Labor Certification and Form I-140  Alien Worker Petition, the foreign worker files a form I-485 application for an immigrant visa at an USCIS Service Center or at a U.S. Consulate. If the foreign worker is legally present in the U.S., he or she can apply for permanent resident status (Green Card) via a process called Adjustment of Status of form I-485 application.

2. The Labor Certification for EB-2 Visa - Advanced Degree Professionals

One of the common ways in which educated foreign workers get employment-based Green Cards in the U.S. is utilizing a category known as EB-2. This is the second preference categories of U.S. immigrant visas. Category EB-2 includes members of the professions who have earned an advanced academic degree. The person must also either have a job offer from a U.S. employer or qualify for a National Interest Waiver.

Before the foreign national can apply for an EB-2 visa and Green Card, however, the U.S. employer offering the job must seek Labor Certification. Labor certification is confirmation from the U.S. Department of Labor (DOL) that the employer has gone through an adequate recruiting process, and rightly determined that no qualified American workers are willing and available to take the job, thus necessitating that the employer turn to foreign sources of labor. 

An important advantage to obtaining a Green Card under category EB-2 is that the process often moves faster than in related labor-based visa categories, such as EB-3. It is a simple matter of supply and demand: fewer people meet are able to the qualifications for this category than for others. Given that the number of employment-based visas approved per year is limited by U.S. law, submitting an application in a category with lower demand can reduce the waiting time significantly. A foreign national who qualifies for an EB-2 visa could potentially obtain a Green Card years sooner than an applicant who qualified for only an EB-3 visa, for example.

1) Special Challenges When the Employer Seeks Labor Certification: Employers planning to sponsor immigrants in category EB-2 must take particular care when listing the minimum requirements for the position. The employer must clearly state that the minimum requirements are a master degree or a bachelor degree plus five years progressive post-bachelor degree experience. If the employer says, for example, that the minimum requirement is either a master degree or a bachelor degree plus a mere two years experience, that will not be enough to gain approval. And making this statement alone will not be enough - the employer will need to prove that the job truly does require such progressive experience.

2) Timing of Gaining the Needed Work Experience: If the foreign national is relying on a B.A. plus five years experience, there are some catches to be aware of. The worker must have met the minimum requirements before, not after, the employer files the labor certification; and in most cases, before having even been employed by the sponsoring company. The DOL does not ordinarily allow a foreign national to count experience gained with the sponsoring employer. Also critical is that, if the foreign national is claiming to have a bachelor degree plus five years progressive experience, the five years’ experience was gained subsequent to obtaining the bachelor degree.

3. The Labor Certification for EB-3 Visa - Professional, Skilled, and Unskilled Workers

This Green Card category is useful for many types of workers, but can also involve long waiting time. The third preference category of U.S. Green Cards (EB-3) available through employment is fairly broad, and it includes professional workers, skilled workers, and unskilled workers.

The foreign national will need a permanent, full-time job offer from a U.S. employer. The employer will need to start the process by obtaining an approved labor certification from the U.S. Department of Labor, confirming that the employer attempted to recruit U.S. workers for the job, but found none who were willing and qualified. Labor certification is required for all three EB-3 subcategories.

1) Professional Workers (No Advanced Degree) Subcategory of EB-3: Who is considered a professional? Immigration law is unclear on the definition of this word, stating only that professionals include such occupations as architects, lawyers, physicians, engineers, and teachers. Aside from these examples of professions, U.S. Citizenship and Immigration Services (USCIS) tends to accept as professionals workers with a university degree working in their field of expertise.

A worker who holds nothing higher than a bachelor degree and has fewer than five years of work experience is probably a good fit for this category, presuming the job being offered is one that normally requires a bachelor degree. (With five years of experience, the worker might be able to qualify in a higher preference category, EB-2.) As long as the worker has the necessary degree, proving eligibility in this category is fairly straightforward.

2) Skilled Workers Subcategory of EB-3: Workers performing occupations that do not ordinarily require college degrees, but do need at least two years of training or experience, fit the subcategory of skilled workers. For example, the EB-3 category may be used for certain types of computer and technical workers (not researchers or managers), chefs, construction first-line supervisors, reporters and journalists, graphic designers, and fashion designers. If the person has done postsecondary training in the field, that can be counted as training.

3) Unskilled Workers Subcategory of EB-3: Any job not falling into one of the subcategories described above would best fit the EB-3 subcategory of unskilled workers. Occupations requiring less than two year training or experience are usually considered unskilled. Housekeepers, nannies, janitors, garden workers, nurse aides, and farm workers are among the likely applicants. 

4. The Green Card Application Process after the PERM Labor Certification Approval

For a U.S. employer to seek U.S. permanent residency for an alien employee, the following is the process after the PERM Labor Certification approval:

1) The employer should file Form I-140 application, Petition for Alien Worker, and also submit the job offer and other evidence to USCIS.

2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, if an immigrant visa number is available, and the alien beneficiary is in U.S. On the other hand, if the alien beneficiary is outside the United States when an immigrant visa number becomes available, the alien could complete the process of status adjustment at a nearest U.S. consulate office.

3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)

5. The Form I-140 Immigrant Petition for Alien Worker

Once the labor certification application is certified, it provides the basis to move to the second stage of the Green Card process and file an form I-140 immigrant petition with the USCIS. The USCIS adjudicates the form I-140 petition, and the processing time varies depending on the Service Center jurisdiction. 

The time it takes to file the I-140 petition depends upon the availability of documents and the speed of action by the employer and employee. An I-140 petition has to be supported by the financial data of employer, and the proof that the employee has the required education and work experience. 

The entire form I-140 petition packet including the labor certification should be submitted to an USCIS Service Center. Usually within 10 - 14 days after USCIS receives the files, a Receipt Notice is sent out to indicate that they have received the I-140 petition packet and a file number is assigned to the case. If USCIS accepts the petition as received, they will issue an Approval Notice. The time frame for the issuance of this Approval Notice depends on the backlog at the USCIS Service Center.

When people file I-140 petition with the approved PERM application, unless the PERM approval letter from the Department of Labor is also filed with the certified form ETA 9089, proper priority date may not be recognized. It is thus prudent and a good practice to file the I-140 petition with the certified form ETA 9089, enclosing the DOL cover letter that comes with the certified form ETA 9089 to assure a proper assignment of the priority date. 

6. The Form I-485 Application for Adjustment of Status to U.S. Permanent Residence

The I-140 petition provides the basis for I-485 application of employee for adjustment of status to U.S. permanent residence. The employee, along with his/her dependents, can file the form I-485 application with the form I-140, or after the form I-140 is filed, as long as the priority date is current.

When your priority date is current, it means that there is a visa available for you, and you should proceed immediately to apply for it. This is done by either filing form I-485 Adjustment of Status for those residing in the U.S., or by Consular Processing in your home country. Most people, if residing in the U.S., choose to file Form I-485 Adjustment of Status, because of the convenience of not making an expensive and time-consuming trip back home country.

Along with the I-485 application, the alien employee can also file requests for travel permission (Advance Parole) and Employment Authorization Document (EAD) 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 EAD is approved, the employee and the dependents of employee will be authorized to work in the United States.

7. Get Help for Your Form I-140 Immigrant Petition

The burden of Form I-140 petition approval rests with the petitioner. The petitioner should provide substantial evidence to meet the regulation requirements of the immigrant visa. If the alien beneficiary is qualified, then the success depends largely on the way the petition is presented to USCIS. 

To help you obtain U.S. Green Card easily and quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for Form I-140 Immigrant Petition, based on our extensive and practical immigration experience.

As added value in the Complete Do-It-Yourself Package for Form I-140 Immigrant Petition, we provide comprehensive instructions on U.S. immigration application requirements and processing, and we also provide you the methods of how to prepare the I-140 petition, how to collect evidence, and how to write the petition cover letter and the reference letters. 

We also provide step-by-step procedures for the I-140 petition, various petition strategies, in-depth explanation of From I-140 petition related issues, detailed sample cover letter, detailed sample reference letters, samples of filled forms, complete petition check list, petition required forms, in-depth case studies, and more.

8. File a U.S. Green Card Application By Youself

Most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.

The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.

Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.

 

 

 


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