Your company successfully obtained labor certification for a valued employee and must now proceed to the second and third steps of the permanent residence process.
What is an Immigrant Petition?
Generally, the first step in obtaining permanent residence (“green card”) on behalf of a foreign worker is labor certification. Labor certification is the process of proving that there are no qualified U.S. workers for the position being offered to the foreign worker. If the labor certification application is certified by the Department of Labor, then the U.S. employer must file an Immigrant Petition for Alien Worker (form I-140). The Immigrant Petition is filed by the U.S. employer with the USCIS in order to obtain an immigrant visa for the foreign worker.
Does the Foreign Worker Qualify?
In order to qualify to file an Immigrant Petition, both the position offered and the foreign worker must meet the eligibility criteria of an employment based (EB) immigrant visa category. There are five EB immigrant visa categories under which the foreign worker may apply each with different requirements. Here, we discuss the EB third preference (EB-3) category.
The foreign worker may qualify for the EB-3 category if s/he is either a professional, skilled worker or other worker.
- Professional. The position must require at least a U.S. bachelor degree (or a foreign equivalent degree) and the foreign worker must possess the degree (or a foreign equivalent degree) or the position requires a person who is a member of the professions.
- Skilled Worker. The position must require a minimum of 2 years training or work experience (relevant post-secondary education may be considered training) and the foreign worker must possess the training or work experience.
- Other Worker. The unskilled labor position requires less than 2 years training or work experience.
How Does the Foreign Worker Acquire an Immigrant Visa Number?
The U.S. employer files an Immigrant Petition, certified Labor Certification and a letter in support along with required documentation with the USCIS Service Center. Once the Immigrant Petition is approved by the USCIS, it is forwarded to the National Visa Center (NVC).
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 worker’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 worker’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.
How Does the Foreign Worker Acquire an Immigrant Visa?
Once the immigrant visa becomes available, the NVC requires that the foreign worker file an immigrant visa application along with required documentation. The NVC performs a background check on the foreign worker. Once the immigrant visa application and documentation are received and the background check is complete and the results are satisfactory, the NVC forwards the petition and all other material to the United States consulate nearest the foreign worker’s foreign residence. The United States consulate conducts an interview and issues the immigrant visa allowing the foreign worker to legally enter the United States to live permanently. Upon issuance of the immigrant) visa, the foreign worker must enter the United States within 6 months. After entry, the foreign worker will be issued a permanent residence card allowing them to live permanently in the United States.
If the foreign worker 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 worker to be fingerprinted at the closest USCIS District Office. The USCIS performs a background check on the foreign worker. Once the background check is complete and the results are satisfactory, the USCIS approves the application for permanent residence allowing the foreign worker to live permanently in the United States.
The Immigrant Petition process is complicated and time-consuming. We suggest the retention of an experienced immigration attorney well versed in the complexities of the process. The attorneys at CLG can efficiently guide you through each step of the process with the end goal of approval of the Immigrant Petition as quickly as possible.
If you are unfamiliar with what is required, you may wish to take a moment to learn more about the employment (immigrant) visa process, to review the requirements for the employment (immigrant) visa, the associated immigrant visa fees and the timelines for the employment (immigrant) visa process.
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