Your company successfully obtained labor certification for a valued employee and must now proceed to the next steps of the permanent residence process or the foreign individual may be able to proceed without an employer sponsor. For your information, CLG has listed the steps in the process below.
United States Citizenship and Immigration Services (USCIS)
After the DOL has certified the labor certification application, the U.S. employer then files an Immigrant Petition for Alien Worker (Immigrant Petition) along with the labor certification on behalf of the foreign individual with the appropriate USCIS Service Center that has jurisdiction over where the foreign individual will work. After the Immigrant Petition is filed, the USCIS will issue a receipt notice. After reviewing the Immigrant Petition, the USCIS will issue a decision. The approved Immigrant Petition is then forwarded to the National Visa Center (NVC).
Timing: Currently, the Immigrant Petition is decided (on average) within 4 months of filing.
*The Immigrant Petition may be filed along with a Premium Processing Request resulting in a decision being rendered in 15 calendar days.
** The USCIS may waive the requirement for a certified labor certification if it is in the national interest of the United States. The foreign individual seeking a national interest waiver may self-petition (a U.S. employer is not required to file the Immigrant Petition). In this instance, the foreign individual files an Immigrant Petition, a letter in support (with a statement supporting a national interest waiver claim), the required documentation and a labor certification (not certified) with the USCIS Service Center.
National Visa Center (NVC)
The NVC requires that the foreign individual file an immigrant visa application along with required documentation. The NVC performs a background check on the foreign individual. Once the immigrant visa application and documentation are received and the background check is complete and the results are satisfactory, the NVC forwards the Immigrant Petition and all other material to the United States consulate nearest the foreign individual’s foreign residence.
Timing: The Immigration and Nationality Act (INA) limits the number of employment based immigrant visas that are issued each year based on the EB preference category. Each preference category is assigned a number of immigrant visas. In addition, there is a limit to the percentage of immigrant visas that can be allotted to each country in a year. Since the demand for immigrant visas is higher than the limited number and greater for some countries, an immigrant visa ‘waiting list’ forms. The foreign individual’s place on the ‘waiting list’ is determined by their ‘priority date’. The ‘priority date’ is either the date the petition was properly filed with the USCIS or the date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required). As such, the foreign individual’s EB preference category, ‘priority date’ and country of origin will determine the time the Immigrant Petition will remain at the NVC until an immigrant visa number becomes available. The wait time can be years.
Processing by United States Embassy or USCIS
United States Embassy or Consulate
Assuming that the foreign individual is outside the United States at the time the immigrant visa number becomes available, s/he will proceed to the United States embassy or consulate in their native country with the original approval notice, complete copy of the Immigrant Petition that was filed with the USCIS, a valid passport and confirmation of completion of form DS-260 and payment of the visa fee employment (immigrant) visa fees.
At the interview, the consular officer will verify that all required documentation has been provided. Second, and more importantly, the consular officer may question the foreign individual in detail with respect to the specifics of the position and the U.S. company.
If the consular officer is satisfied, the immigrant visa is approved and placed in the foreign individual’s passport. At that time, the United States embassy or consulate will also approve any immigrant visa application and place immigrant visa(s) in the foreign individual’s spouse and/or minor child(ren)’s passport(s).
Timing: Currently, the scheduling of the interview depends on the individual United States Embassy or Consulate.
Entering the United States
Upon issuance of the immigrant visas, the foreign individual, spouse and any child(ren) may enter the United States and the foreign individual may begin employment.
Adjustment of Status in the United States by USCIS
Assuming that the foreign individual entered the United States on a non-immigrant visa (i.e. H-1B visa) and is currently in the United States legally, s/he can file an application for permanent residence, travel document and work permit with the USCIS Service Center. The USCIS will issue receipts for each application then schedule the foreign individual to be fingerprinted at the closest USCIS District Office. The USCIS performs a background check on the foreign individual. Once the background check is complete and the results are satisfactory, the USCIS approves the application for permanent residence allowing the foreign individual to live permanently in the United States.
Timing: Currently, the Application to Register Permanent Residence or Adjust Status (form I-485) is approved (on average) within 4-6 months of filing.
More information about the specific requirements of obtaining an employment (immigrant) visa is available on the employment (immigrant) visa FAQs.
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