At Garza & Associates, we assist individuals and employers through all phases of the employment-based immigration process. The process for obtaining permanent residence based on employment usually involves three phases:
- The employer must first obtain a “Labor Certification” from the U.S. Department of Labor (DOL) if the category requires it,
- The employer then petitions USCIS on behalf of the foreign national for immigrant classification under the employment-based preference on Form I-140; and,
- The foreign national applies to USCIS for Lawful Permanent Resident status or the “green card” through adjustment of status in the United States or Consular processing overseas.
Depending on the employment-based preference category through which the individual immigrates, a Labor Certification may or may not be required. The employment-based preference category is determined by the education and experience required for the position and beneficiary’s qualification:
Under immigration law, employers may petition for legal employment status for the following workers:
- Priority workers: persons of extraordinary ability in sciences, arts, or business
- Outstanding professors and researchers
- Multinational managers and executives
- Advanced degree professionals or persons of exceptional ability
- Skilled workers, professionals, and other workers
- Certain special immigrants such as religious workers
- Investors (EB-5)
These categories of workers have different processing requirements and waiting periods to obtain lawful permanent residence. Once the initial step has been taken in the chosen category, whether the filing of a Labor Certification or immigrant petition (Form I-140), the individual will be given a priority date. If filing a Labor Certification, the priority date is the date on which the application for Labor Certification is filed with the Department of Labor. If the individual is not required to file a Labor Certification, as is the case in certain employment-based categories, the priority date is established on the date the immigrant petition (Form I-140) is filed.
Once a priority date is established, the foreign national must wait for his/her priority date to become “current” before submitting an application for permanent residence or adjustment of status. As the number of foreign nationals that desire to become permanent residents surpasses the number annually allowed to become permanent residents, backlogs are common in certain categories. If there is a backlog, the foreign national must wait for the dates to move in his/her favor until his/her priority date becomes “current.” If there is no backlog, then the category is “current” and all foreign nationals in that category with an approved immigrant petition may apply for permanent residence and employment authorization. It is important to note that the foreign national must maintain their non-immigrant status at least until they file for adjustment of status.
The lawyers at Garza & Associates know the requirements and have assisted numerous employers and workers in navigating the process. Contact our Texas law firm for more information.
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