What are the steps to a green card through employment?

Yesterday I wrote about the different preference categories in permanent residence (green card) processing. Employers and foreign nationals frequently ask what the steps are to getting a green card, so these are outlined below. Tomorrow I'll explain the steps in a family-based case.

PERMANENT RESIDENCE APPLICATION PROCEDURE

1. Labor Certification

1. If the preference category requires a test of the US job market, the first step involves getting a labor certification (called PERM) approved by the Department of Labor (DOL). The employer needs to conduct a prescribed number of recruitment methods, to see whether there is an available, qualified, US worker interested in the position. Because of the uncertainties of the job market, this is the most unpredictable step in the immigration process. Martin Immigration Law works closely with employers to analyze the position, requirements, and advertising, and to answer questions regarding the process. However, no immigration law firm can review resumes or screen applicants.

2. I-140 Immigrant Petition

(i) With labor certification
Once the labor certification is approved, the employer files an immigrant visa preference petition with the US Citizenship and Immigration Service (CIS, formerly INS). This petition needs to prove the following to USCIS:
(a) that the DOL has approved a PERM on behalf of this foreign national;
(b) that the foreign national has the education and experience required as listed on the labor cert. The employee will need to provide educational documents and copies of experience letters. Martin Immigration Law will discuss these with the employee at Step 1.
(c) that the employer can afford to pay the salary listed on the PERM.

(ii) Without labor certification
If the employee is in a category that does not require labor certification, the process starts with the employer filing an I-140. In that situation, the I-140 needs to include extensive detail about the employee’s qualifications for the classification requested. For example, if the employer is asking that the employee be classified as an outstanding researcher, we must include evidence of the foreign national’s publications, presentations, research experience, education, recommendation letters, etc.

3. Adjustment of Status or Consular Processing

The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, her dependent family members also file for permanent residence at this stage. This final step involves the employee and her family showing to USCIS or the consulate that there is no reason why they are not permitted to get permanent residence, i.e. there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status
If the foreign national’s priority date is current*, s/he can file the Adjustment of Status (AOS) with the I-140, or while the I-140 is pending. If the priority date is not current, the foreign national must wait until it is current before she can file the AOS.

(ii) Consular Processing
If the foreign national prefers, she can complete the permanent residence at her home consulate. If she chooses this option, she cannot do the 3rd step until and I-140 is approved AND the priority date is current. Consular processing used to be faster than AOS sometimes, but with concurrent filing of AOS now available, consular processing is less popular. It is also more cumbersome because of the travel requirements and the need for more documents than with AOS.

* Please see the FAQs on my website for an explanation of these terms.

New rules for temporary farmworkers announced

The US Citizenship and Immigration Services (CIS) published changes to immigration regulations that will "streamline the hiring process of temporary and seasonal agricultural workers." These workers come to the US in H-2A status, however employers have long complained that the process is so cumbersome that the growing season is over before the workers get the visas to come here. One reason for the delay is the fact that the Department of Labor has to certify that there is a shortage of US workers available. This procedure is, unfortunately, not made any easier by the new rules.

Immigrant rights advocates complain that the new rules do not allow undocumented workers who are currently in the US to apply for the visas. Why don't they just go home and apply? Because if they leave the US, they are subject to 3 or 10 year bars on returning, in most cases.

The changes to the H-2A regulations include:

• Relaxing the current limit on H-2A employers to petition for multiple, unnamed agricultural
workers;
• Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may
remain in the country following the expiration of his or her temporary H-2A stay;
• Reducing from 6 months to 3 months the time an H-2A worker who has spent 3 years in
the US stay outside the US before s/he cat get H-2A status again;
• Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, IF the new employer is participating in USCIS’ E-Verify program;
• Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A
workers as a condition of employment;
• Requiring an approved temporary labor certification in connection with all H-2A petitions;
• Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and
• Permitting the approval of H-2A petitions only for nationals of certain countries designated as
important to the operation of the program and appearing on a list to be published annually in the
Federal Register. The initial list of participating countries to be published simultaneously with
this Final Rule includes Mexico, Jamaica, and 26 others.

For FAQs on the rule: http://www.uscis.gov/files/article/h2a_qa_11dec08.pdf.

For an article on NPR's Morning Edition:

http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=98174972&m=98174951