Permanent Residency

Two of the most common ways to obtain a green card, or legal permanent resident status, are through family or employment. In the employment context, most categories require an offer of employment to take effect once your green card is approved. The offered position must require the services of someone who is either: an outstanding professor or researcher (EB-1B), multinational manager or executive (EB-1C), holder of an advanced degree or a bachelor’s degree and 5 years of professional experience (EB-2), deemed to have exceptional ability in the arts, science, or business (EB-2), has a bachelor’s degree, at least 2 years of professional experience, or limited experience (EB-3).

In the alternative, some employment-based categories allow a worker to self petition without an employer sponsor, including individuals who have extraordinary ability in the sciences, arts, education, business, or athletics (EB-1A) and those seeking a national interest waiver (EB-2).

The green card process generally consists of three steps: Labor Certification, I-140 Immigrant Petition, and I-485 Adjustment of Status.

•  The Labor Certification Application, also known as PERM, is a determination by the Department of Labor (DOL) that there are no qualified and available U.S. workers for the position for which the Labor Certification is being sought. Favorable determination is a prerequisite for obtaining employment-based permanent residency in the EB-2 and EB-3 categories (excluding the National Interest Waiver).

The Labor Certification process is in effect, testing one particular job market. For that reason, it is both job and location specific, and any substantial change in the job duties or a change in geographical location will require the employer to start the process over again.

The government processing time for a Labor Certification ranges between 1 to 8 months. An application for Labor Certification requires that an employer complete the mandatory recruitment activities no more than 180 days but not less than 30 days prior to filing the Labor Certification application. Recruitment activities generally include print advertisements in newspapers, job-postings on the Internet, usage of the employer's employee referral program, and evidence that the company participates in college on-campus recruiting, etc.

•  The I-140 Immigrant Petition for Alien Worker is filed after approval of the PERM application (if it was required).  This petition is prepared by the employer requesting to sponsor you for permanent residency.

•  The I-485 Adjustment of Status application formally requests that your status be changed from nonimmigrant to immigrant (legal permanent resident). You may also file applications for immediate family members (spouses and unmarried children under 21). Generally the I-485 is filed after the I-140 is approved, but in some cases, they may be filed together.

Any material changes during or after the PERM process, including change of employer, change in worksite, or change job duties, require a new application.

In regards to the I-140, a beneficiary whose petition is revoked can use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

An I-140 petition, approved for 180 days or more, will not be automatically revoked if the employer goes out of business or withdraws the petition. Although the I-140 may remain valid, it cannot be used for I-485 filing with a different employer.

A beneficiary of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

An AOS application that has been pending for 180 days or more remains valid even if the applicant changes jobs or employers as long as the new job is in “the same or a similar occupational classification” as the job for which the I-140 was filed.

The alternative to adjusting your status from nonimmigrant to legal permanent resident in the U.S. is consular processing. You must apply for consular processing if you are outside of the U.S. After the I-140 has been approved, your case will be transferred to the National Visa Center for processing before your file is transferred to the appropriate consulate. The consulate will then schedule an interview with you to discuss your eligibility to become a permanent resident.

Consular processing is generally quicker than adjustment of status, however the application may be subject to administrative processing. Further, consular processing does not provide the benefit of advanced parole (Form I-512) or employment authorization (Form I-766) based on a pending AOS application.

Potential reasons for ineligibility should also be considered when determining whether adjustment or consular processing is more favorable.

In general, you may not file your Form I-485 until a visa is available in your category. For information on visa availability, see the USCIS  Visa Availability and Priority Dates page, the Adjustment of Status Filing Charts, and the Department of State website to view the Visa Bulletin.

If a visa is currently available in your category at the time the I-140 is to be filed, you may file both the I-140 and I-485 together, which is known as concurrent filing. Concurrent filing is not available for consular processing cases.

Travel during the PERM/Labor Certification is allowed. Because the  I-140 is an immigrant petition, we discourage international travel if you are in a nonimmigrant status that does not allow dual intent. You may travel internationally during the AOS process without abandoning the application if you have been granted Advance Parole. Your Advance Parole document (often issued in a combined card utilized for work and travel authorization) must be approved prior to exiting the U.S. Further, travel during a pending application for advance parole may abandon the application. To re-enter the U.S., you must carry the following:

• Valid passport;
• Valid Advance Parole document; and
• Your most recent pay-stub to prove continued employment.

Alternatively, if you are still in either H or L status, you can also return to the U.S. with the following documents without abandoning your AOS application:

• Valid passport;
• Valid H or L visa (except Canadian citizens);
• Valid I-797 (H or L approval notice) issued to your current employer on your behalf; and
• Your most recent pay-stub to prove continued employment.

Upon your entry, USCIS will issue a new I-94 and should grant you entry to continue your adjustment of status application.