Wednesday, July 27, 2011

Perm 101

There are 3 steps involved to obtain Employment-based green card.

Step 1: obtain Labor Certification
A Labor Certification is a document issued by the Department of Labor (DOL) that allows employer to file an employment-based immigration petition on behalf of the alien worker.

The Labor Certification Process can be divided into the following stages:
1. Application: The employer files the Labor Certification petition with the appropriate State Employment Security Agency (SESA) or State Workforce Agency (SWA).
Review: The SESA date stamps the application - this is the "priority date" for the case. The SESA then reviews the application and may request modifications. They will notify the employer of potential problems, including whether the minimum requirements for the position are reasonable and determine that the wage offered meets minimum prevailing wage standards.

Recruiting Campaign: The employer will now begin a recruiting campaign, closely supervised by the SESA. Advertisements detailing company requirements are placed in newspapers and publications. All applicants who meet the requirements have to be interviewed.

Results Submission: The employer will submit a detailed report of the recruiting campaign to SESA. The report includes proof that advertisements did indeed run in newspapers and it should justify the reasons for rejection of all (or any) of the applicants.

Final Decision: If the DOL agrees that no US workers are available to fill the position based upon fair recruitment efforts, they will approve the labor certification application.

How long does it take?

The Labor Certification Process usually differs from state to state. Each state has its own wait period, depending on the number of pending cases. On an average, this process can take between six months and three years.

What will happen when H1B expires while Perm pending?
The employee will have four options:
Recapture H1B time;
If Perm is filed 1 year before H1B expires, H1B extension of 1 year can be filed; in some cases, it can even be extended to 3 years.
Get another visa that will allow him or her to work legally in the country while waiting;
Going back to the country and wait.

How much does it cost?

There is no filing fee for Labor Certificate. The major cost will be advertisements expense and attorney fee.

Step 2. I-140
After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS), Form I-140. Employer should demonstrate that the company is in a good financial position to capable of paying the salary advertised for the job. For this purpose employer's financial financial statement and corporate income tax return documents also required.

The processing fee is $475. The wait period depends on the backlog. Usually it takes about 6 months.

Step 3. I-485
Application to  adjust Status. Approval of I140 does not give the employee green card status. I485 must be filed for green card.

Filing charge is $1010. Processing time again varies from service center to service center. However, after 2004, I140 and I-485 may be filed concurrently. Therefore, if I40 is properly prepared, the waiting time of I485 will be shortened to some extent.

Employment-based green card application is the most complicated process, in my opinion. It is my suggestion that the employer takes action as soon as possible.

This legal guide provides legal information. This does not constitute legal advice. Contact an experienced immigration lawyer if you need legal advice. You are welcome to visit our website or email us at