The Employment-Based Green Card Process

The three steps in most employment-based Green Card and Immigrant Visa processing entails: 1) Labor Certification by the U.S. Department of Labor; 2) Approval of an Immigrant Visa Petition; and 3) Applying for a Green Card (if in the U.S.) or an Immigrant Visa (if abroad).  Below is a summary:

LABOR CERTIFICATION OVERVIEW

Labor Certification is mandated as the first step in most employment-based immigration for the purpose of protecting the U.S. labor market.  Since March 28, 2005, labor certification applications are submitted to the U.S. Department of Labor (DOL) using its Program Electronic Management Review System (PERM).  The PERM process is required for employment-based second (EB-2) and third (EB-3) cases, unless the petition will entail a National Interest Waiver and certain healthcare fields.

LABOR CERTIFICATION REQUIREMENTS

The labor certification process entails a test of the local labor market for availability of qualified and available U.S. workers.  Recruitment efforts for the position must entail advertising the position at the level of or above the prevailing wage.  Employer attestations are submitted with to the DOL to indicate compliance with recruitment and other PERM requirements.  Employers must create and maintain a PERM audit file with evidence of proper recruitment efforts and supporting documentation.  The DOL may audit the employer to verify compliance.

STEP 1: THE PERM PROCESS

The Law Office of Steven Nguyen & Associates provides comprehensive representation throughout the entire PERM process, including detailed case analysis, filing preparation, employer audit file compilation and related legal advice. We also take on cases at the audit stage and during post-denial audits to the Board.

During the PERM stage, although the attorney will do most of the paperwork, the employer’s cooperation is critical.  The DOL mandates that a number of steps only be conducted by the employer.  The employer should expect to:

• Provide documents and relevant information about the company and the proffered position;
• Review and approve the job details prepared by the attorney;
• Register on the PERM online filing system;
• Review and approve recruitment schedules prepared by the attorney;
• Choose an employee to review job applications and interview applicants, if necessary; and
• Review the recruitment reports prepared by the attorney and sign the recruitment report.

STEPS 2 AND 3: THE IMMIGRANT VISA PETITION AND APPLYING FOR THE GREEN CARD (OR IMMIGRANT VISA)

The employment-based immigrant visa petition is filed after the Labor Certification is approved–or at the outset of the process for positions not requiring DOL certification. The petition is filed with comprehensive proof of the employee’s qualifications for the applicable classification and typically with proof that the employer can pay the prevailing wage since the priority date.  If the category in which the petition is filed is current, the Adjustment of Status Application can be submitted at the same time.  If the applicant is abroad, consular processing of the immigrant visa is possible. If there is retrogression in the visa classification, the beneficiary should keep valid their underlying nonimmigrant status if in the U.S., or wait for their visa availability in their home country, if abroad.

Before embarking on this multi-year process it is critical that the proffered position, employer, and beneficiary are carefully evaluated to ensure the highest chances of a successful outcome.  Attorney Steven Nguyen has assisted hundreds of employers and beneficiaries in achieving their employment-based immigration goals. Schedule a consultation for a detailed discussion of possible eligibility.

Complementing the employment-based (permanent) immigration process are a number of nonimmigrant (temporary) visas that companies and workers look to, including H-1B, L-1, O-1, TN, B-1, and E-2 visas.

At the Law Office of Steven Nguyen & Associates, we routinely petition for family members eligible to receive immigrant visas. Two groups of family based immigrant visa categories, including immediate relatives and family preference categories, are provided under the provisions of United States immigration law, specifically the Immigration and Nationality Act (INA).

Immediate Relative Immigrant Visas (Unlimited): These visa types are based on a close family relationship with a United States (U.S.) citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include:

• IR-1: Spouse of a U.S. Citizen
• IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
• IR-3: Orphan adopted abroad by a U.S. Citizen
• IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
• IR-5: Parent of a U.S. Citizen who is at least 21 years old

Family Preference Immigrant Visas (Limited): These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants, shown at the end of each category. The family preference categories are:

• Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (23,400)
• Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters. (114,200)
• Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (23,400)
• Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000)

For a Preference category petition, once the Relative Petition is approved, the Application for Permanent Residence can be filed if visas are available. Visas are always available for immediate relatives of U.S. citizens.  Beneficiaries under the preference system must wait until visas are available.  The date of filing the petition establishes the “priority date” which is the Beneficiary’s place in line for their visa.  Please contact our office for the current visa bulletin and visa availability.