GENERAL INTRODUCTION: Getting a Green Card via Labor Certification
This document is our firm’s timing-oriented overview of the steps involved in the green card process using Labor Certification as an underlying basis to U.S. lawful permanent residence.
The green card process consists of three Stages, each described in detail in the next sections.
Stage 1. Labor Certification Application, ie, LC or PERM – to Department of Labor (“DOL”).
Stage 2. I-140 Petition for Immigrant Worker – to the Immigration Service (“US CIS”).
Stage 3. Green Card Clearance – to obtain US lawful permanent residence – either by “adjustment of status on US soil” (by US CIS) or “immigrant visa processing at a US consulate” (by US Department of State).
The essence of the process is that the Petitioning employer must test the U.S. labor market for the position offered to the foreign national, to see if there is a U.S. worker – instead of the foreign national – qualified and available for the job. After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process. If a qualified and available U.S. worker is found, the green card process stops. Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified US workers who should be offered the job first. It does not prevent us from trying for the green card for the foreign national again.
How soon until one gets the green card? The short answer (for people who are NOT Indian or Chinese): about 25-35 months IF an unhindered road opens before you, at each stage. Obstacles are absolutely normal to the process of getting a green card. But Indian and Chinese nationals (and often others too) do not proceed to green card processing until years after the Labor Cert and I-140 are approved. The US Department of State specifies which categories can proceed to green card filing or ‘final processing’ on its Monthly Visa Bulletin.
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STAGE 1: Labor Certification Application (Labor Cert or PERM)
In general, the point of this stage is to test the US labor market to see if there are any qualified US citizens or green card holders for the job offered to the foreign employee. A Labor Certification Application in Stage 1 is submitted to DOL.
Case Analysis & Prep. Our firm reviews company and position information, plus the employee’s credentials gained prior to joining the company, and strategizes the case. We analyze:
(a) the current job description,
(b) the job title/description that describes what the employee will be doing when cleared through this entire green card process,
(c) the company’s market position,
(d) the person’s actual credentials for the job,
(e) DOL’s description of their closest-matching position and
(f) the prevailing wage for the job in this geographic market: to clear your actual salary against DOL’s prevailing wage for similar positions.
Unfortunately, the law only allows us to use experience gained PRIOR to the sponsoring employer. Yet, the employer often sponsors the foreign employee for US permanent residence precisely because s/he holds important skills gained on the job. This is problematic. Experience gained with/at the sponsoring US employer is difficult to use; however, it should not be disregarded as the best and true strategy. We may be able to use the employee’s experience at the current employer. Talk to a lawyer about using an OPT internship position if it is more than 50% dissimilar in terms of tasks compared to your current position.
Recruitment. If the employer has recruited for this position in the last 6 months, or a similar position, the employer should let us know immediately.
The employer works with us to approve the Job Description draft and helps estimate how many responses the employer will get for advertising the job. (If it appears that the market is too responsive, we abort the process at this stage.) Candidates who turn up during recruitment are eliminated if they don’t qualify for the minimum requirements of the job. Those that seem to qualify must be interviewed. The Employer works with us by keeping incoming resumes and reviews them according to a schedule so that potentially qualified applicants are called back within 2-3 weeks. We will explain this process in detail as we go through it.
Timing. Prep lasts about 1-3.5 months; then we submit a pre-DOL filing to get the Prevailing Wage on Form 9141; ads and recruiting for US workers takes at least 3 months; and finally there is the filing of the ETA9089 with DOL. Pendency at DOL has two unpredictable phases (ETA9141 Prevailing Wage sits at DOL for apx 5-7 months right now; ETA9089 Labor Cert filing pendency is apx 8-11 months – both are so long now that DOL is getting sued). Preceding that, case preparation can easily take 4 weeks or more. And after the last ad, there is a mandatory 30-day cooling period. In between the ETA9141 and ETA9089’s filing, the advertising for US workers is a careful process while the company runs ads, under our guidance and supervision, for a minimum of four weeks (30 days with the State Workforce Commission) and engage in interviews for potentially qualified workers.
NOTE: Much longer delays can be caused by Audits. Audits are not unusual and may be expected in many cases where we exceed DOL’s pre-crafted education/experience for a given job. An Audit comes when a language requirement exists; or An audit also results for cases where DOL wants to review resumes for results of recruitment of US workers. A PERM Audit adds 3 to 10 months time and several hours of work for everyone.
Ongoing Employment Issue. Notably, this process creates a special bond between the employer and the employee, because this type of green card depends strictly on an ongoing offer of employment.
(A) For people already employed with the sponsoring employer: The employer and the employee must intend for the employee to work for the employer, even if getting the green card takes forever. This “intent to employ” must go from case prep in Stage 1 … all the way until we file Stage 3.
Caveat. After filing Stage 3 and waiting 6 months, the employee is eligible to leave and work for another employer in Pending Green Card Status (provided that the employee’s next employ is “same or similar” to the one sponsored by the original employer if the I-140 was approved).
(B) For people who will be employed with the sponsoring employer only after approval of the green card: The employer and employee must intend that the employee will work for the employer, once the green card is approved. This intent to employ is proved by hiring the employee once he or she obtains the green card. During pendency, the employee may work for other employer(s).
WE ADVISE EMPLOYERS that no matter what happens along the way, bona fide ‘intent to employ’ is required.
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STAGE 2: I-140 Immigrant Visa Petition
After the Labor Certification has been approved by the DOL, we file the I-140 Immigrant Visa Petition. The I-140 must be filed within 6 months of Labor Certification approval.
The I-140 proves to US CIS that
(a) DOL agrees that the job opening exists,
(b) the employee noted is the qualified applicant,
(c) the company is financially viable to pay the employee the pre-chosen prevailing wage for the job in the geographic market, as agreed on the Labor Certification Application, and
(d) the company has a bona fide job opening and need for the sponsored position.
Preparation is quick, apx 2-3 weeks, while forms are generated and signed and the employer provides company information and financials. The only outstanding issue that can take time is getting the employee’s qualifications letter(s) from a previous employer that touches all required skills on the ETA9089. The I-140 will be pending 4 to 7 months (15 days for some allowed).
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STAGE 3: Permanent Residence Application, ie Green Card Clearance Process
This stage includes the final green card clearance paperwork for the employee and his or her family. At this stage, we provide all biographical, criminal and medical data to ensure that persons immigrating are not excludable from the US for medical, criminal or other reasons. There are two ways to clear for the green card:
1. Adjustment of Status on US soil, under CIS.
2. Immigrant Visa Processing in the US consulate overseas, under DOS.
Adjustment of Status (AOS). Most clients are filed as an “Adjustment of Status” on US soil once the Employee’s Priority Date** becomes ‘current’ based on DOS’s Visa Bulletin (explained up top). We file the Form I-485 adjustment forms with the Form I-765 interim work permit and the I-131 travel permit (travel is allowed only if there were no status problems leading up to this point).
OR
Immigrant Visa Processing (IVP). Alternately, a client may consular process for the green card called Immigrant Visa Processing or IVP. IVP is started when the Priority Date becomes current (explained up top). If immigration strategy changes midstream, dictating that the employee should use IVP instead of adjusting status on US soil, our fees will remain the same. This option is better in a few situations (certain Canadians, or employees who had problems maintaining temporary work status). It depends on specific facts and the company’s policy.
POST-STAGE 3: Possible Additional Filings
– EAD Extension and AP Extensions – needed for AOS cases pending over 18 months.
The EAD (interim work document) and AP (interim travel document) filed in Part 3 are only valid for one year at a time. Since the processing of the green card may take longer than one year, we may have to extend the EAD and AP documents of family members. Currently, extensions take a long time to be processed. For uninterrupted travel, BE SURE TO FILE 6 months prior to expiration (ie, the earliest day you can). The EAD card is best co-filed with the travel permit extension, however, EAD work status is extended automatically in these cases if you file before it expires (this “just file to extend” rule does NOT apply to travel permits).
Additional Relevant Work Considerations
Payment Methodology. We invoice in stages over the years. For Stage 1, invoice the client the whole amount up front, but other arrangements may be made. We refund fees for incomplete work, if the case is aborted at any stage, using standard, percentage-completion charts.
Communications. Please note that these cases are technically dual representation situations so we must communicate with both the Foreign National and the sponsoring Company on most matters (we are working together against the US government to obtain this federal immigration benefit). The foreign national is necessarily excluded from discussions about recruitment for US workers when the ads are running so they cannot influence the process.
Assignment of Work. At least two individuals in our firm handle all stages of the green card preparation and filings, a Senior Paralegal and an oversight Attorney. Thank you for your prospective business. Please contact Lang Wallace for help at 1-703-531-0790 or info@langwallace.com.