This document summarizes the procedure to obtain permanent resident status (the so-called "green card") via employment and explain the information needed from the employer to process the case. The procedure to obtain a green card is a three-stage process. The first stage involves filing an application with the U.S. Department of Labor (DOL). The second stage involves filing a Form I-140 with United States Citizenship & Immigration Services (USCIS). The third stage involves filing a Form I-485 with USCIS or an immigrant visa application with the U.S. Embassy in the sponsored employee's country of origin (see below for more information). These forms are processed at a government service center on a mail-in or electronic filing basis, thus eliminating a personal interview in many cases.
Please note that under the applicable laws and regulations, the employer is only confirming the existence of a "job offer" if the employee is granted a green card. Accordingly, the sponsored employee is technically not required to work for the employer until a green card is granted. Additionally, the employer reserves the right to withdraw the job offer at anytime during the process for any reason, thereby canceling the process without any legal obligation attaching to the employer resulting from such cancellation. Moreover, sponsoring a current or prospective employee for a green card in no way signifies that the employee, if currently working for the employer, is employed without work authorization in violation of the I-9 rules.
While the process is complex, our office will handle the logistics to avoid little, if any, inconvenience to the employer. In many cases, the sponsored employee agrees to bear the costs of the process as allowed by applicable government regulations.
Stage I - Labor Certification
The employer and the sponsored employee who wants the green card must file an application with the Department of Labor using an online filing system known as PERM. This application is called an ETA Form 9089. This application will describe the job and what education and/or experience and/or any special skills the employer requires applicants to have, what the salary is and the skills and experience of the sponsored employee. The employer will be required to set up an online account with DOL and set up a sub-account for us following our detailed instructions which we will email to you.
In all cases, the employer will be required to "test" the labor market to show that there are no American workers who are willing, able and qualified to fill the position. This requirement is met by placing a "help wanted" ad for two consecutive Sundays in the nearest major paper, and a thirty-day job order with your local State Workforce Agency (SWA). Employers sponsoring professional workers are required to conduct additional recruitment by placing ads on the Internet, with employment referral agencies, at college placement boards, etc. We can inform whether you are subject to this additional recruitment requirement. The job vacancy also must be posted at the job site as well. We will draft the ad for the employer's convenience and also will handle the logistics of having the ad placed in the newspaper. If requested, we will provide the employer an opportunity to review the text of the ad before it is placed.
In most cases, applicants respond directly to the employer. The employer must contact and minimally conduct a telephone interview of all those applicants that seem to meet the minimum requirements of the job as advertised. The employer can only reject a worker for valid job-related reasons. After the interviewing is completed, the employer reports on the results of the recruitment and submits the case to DOL for approval. If the employer has demonstrated that there are not any qualified U.S. workers available, DOL will approve the application and issue a certification. We, of course, will handle the logistics of drafting the report.
Stage II - Immigrant Visa Petition
Once DOL has approved the labor certification, a petition for an immigrant visa is filled with a USCIS service center on Form I-140. In support of the petition, we must provide evidence that the alien meets the particular job requirements listed in the labor certification, e.g. via copies of diplomas and/or letters from previous employers. We must also disclose financial information concerning the company sufficient to show USCIS that is solvent and capable of providing wages and employment on a continuing basis. For a large, public company, this may be accomplished with a published annual report. A privately owned company with at least 100 employees may issue a letter for a financial officer. Small companies with less than 100 workers must provide a copy of an audited financial statement or most recent corporate tax returns, and the sponsored employee’s Form W-2 if available.
Stage III - Adjustment of Status or Consular Processing
If the sponsored employee is currently in the U.S., we file the application for adjustment of status on Form I-485. Thus, we request “adjustment” of the alien's status to that of a green card holder. Like the immigrant visa petition, this paperwork is submitted by mail to the USCIS service center and a final interview is not required in many cases. The information and documentation required with this application from the alien worker includes fingerprints, medical exam, personal and family biographical information, birth and marriage certificates, personal tax returns, copies of prior USCIS activity (e.g. visas, I-94 cards, student I-20 forms, prior approval notices, etc.). The company must issue a letter reiterating its intention to employ the worker, and it should provide evidence that the alien is being paid at or above the rate listed in the labor certification application.
If the sponsored employee is abroad, OR if the sponsored employee is in the United States in violation of the Immigration laws, stage III commences once the USCIS notifies the U.S. Embassy abroad that stage II has been completed and that the sponsored employee is qualified for an interview and therefore eligible to be issued an immigrant visa. Upon completion of the consular interview, the sponsored employee arrives in the United States and is admitted as a green card holder.
If the sponsored employee is present in the United States in violation of the immigration laws, he must either consular process, or file Form I-485 (green card) here with USCIS under a law known as Section 245(i). At the present time, that law is no longer valid. If and when that law is revalidated, the sponsored employee will have to pay a penalty fine to the federal government in the amount of $1000.00.
Estimated Processing Times
The total estimated processing times at the various governmental agencies (DOL, USCIS, U.S. EMBASSY) have grown to be more than five years in many regions. The processing times may vary greatly, depending at any given time on the size of the agency backlog, visa availability as well as further changes in processing procedures. This backlog fluctuates constantly, and we monitor it monthly.