Employment based Immigration

Employment Based Immigration

The process for obtaining permanent residence on employment is comprised of three phases: the labor certification, the visa petition, and the application for permanent residence.

I. LABOR CERTIFICATION

In most cases the employer must obtain “labor certification” from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer should have also offered the position at the normal or prevailing wage. 

The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered. Nor can the requirements be tailored to the foreign worker’s specific skills and qualifications. We at the Law Office of Prashanthi Reddy, will guide you through this crucial process of preparing the Labor Certification application. Because of our experience in filing labor certifications we are able to identify and resolve potential issues and ensure that your application meets the labor department regulations. In addition some of the Laws that govern the Labor Certification process do not have regulations written to interpret them, sometimes these regulations are vague and open to different interpretations. At the Law Offices of Prashanthi Reddy we are aware of the present practices and interpretations of the Labor Department, this ensures a properly filed Labor Certification and a prudent response to any audits that might follow.   

A test of the labor market is generally done through newspaper/website/journal advertisements and requesting the DOL to place a job order. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons. We will educate the employer on this process to ensure that the regulations are met.

A labor certification is only a first step in the permanent resident process to obtain the “green card.” It is a lengthy process and does not give authorization for a foreign national to remain or work in the United States unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa. In some regions, the process could take more than two years. 

a. Are There Any Other Ways To Expedite Process? Physical therapists and professional nurses have been exempted from rigorous labor certification requirements. Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a “Special Handling.”

b.Can Labor Certification Be Avoided Altogether? Labor Certification is only required for individuals applying under the employment-based second and third preference categories (see below).
    Individuals who qualify under the Employment-based first preference do not require a labor certification. The three categories under the first preference are: (I) Persons of Extraordinary Ability, (ii) Outstanding Professors and Researchers; and (iii) Multinationals Executives or Managers

II.IMMIGRANT VISA PETITION

(I-140)

The approved labor certification is filed with the U.S. Citizenship and Immigration Services (USCIS) along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship: 

a. Employment-based second preference

members of the professions with advanced degrees or the equivalent or aliens of exceptional ability in the sciences, arts or business; 

 

b. Employment-based third preference

 

professionals, skilled workers (jobs requiring two years or more training or experience) or unskilled workers (jobs requiring less than two years training or experience). 

If there is a backlog, it usually takes many more years to immigrate under the third preference unskilled category. Strategies to avoid the third preference unskilled classification whenever possible are imperative. We at the law Officer of Prashanthi Reddy, will ensure that your Labor Certification and I-140 are filed in the category that best reflects your employers minimum job qualifications and puts you into an employment category with the least amount of backlog.   

C. Employment based First Preference

(i) Persons of Extraordinary Ability

An individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required. 

(ii) Outstanding Professors and Researchers

An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field. 

This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field.

(iii) Multinationals Executives and Managers

An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation. The alien must further establish that he or she worked in a managerial or executive capacity for one year prior to his or her entry into the U.S. in the parent, subsidiary, branch or affiliate of the U.S. entity.

(iv) National Interest Waivers

The time consuming labor certification procedure may be avoided altogether even under the second preference if the foreign national can establish that the “job offer” requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest

The requirements for each of these categories is complicated and again open to interpretation. We will be able to evaluate your situation and advise you on the best possible options.

II. IMMIGRANT VISA PETITION

(I-140)

The approved labor certification is filed with the U.S. Citizenship and Immigration Services (USCIS) along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship: 

a. Employment-based second preference

members of the professions with advanced degrees or the equivalent or aliens of exceptional ability in the sciences, arts or business; 

 

b. Employment-based third preference

professionals, skilled workers (jobs requiring two years or more training or experience) or unskilled workers (jobs requiring less than two years training or experience). 

A labor certification is not needed for some categories, as explained above, in which case the I-140 can directly be filed. 
If there is a backlog, it usually takes many more years to immigrate under the Second and third preference unskilled category. Strategies to avoid the third preference unskilled classification whenever possible are imperative. 

At this point of time, both the second and third preference categories are not current. 

III. APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING

(I-485)

a. Adjustment of Status

If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the USCIS in the U.S. The individual’s priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The application can remain pending for several months before the USCIS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” However, “advance parole” is not required for people on H-1B or L status. 

 

b. Who Are Eligible For Adjustment Of Status?

Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed prior to April 30, 2001, could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their non-immigrant visas. These individuals would have to pay a penalty fee of $1000. Also, certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days, even if the labor certification was filed after April 30, 2001. 

 

c. Portability.

A new portability provision was introduced in October 2000. If an adjustment of status application has been pending for more than 180 days, the green card process would not be thwarted if the applicant got an offer from another employer in a similar occupation. 

d. Consular Processing

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must also return to their home country for consular processing. Many opt for consular processing as adjustment of status is more time consuming. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for ten years. There are very limited exemptions for overcoming these bars.

IV. WHAT YOU NEED TO DO TO START THE PROCESS WITH OUR OFFICE

Once you decide to start the process you will receive a questionnaire and list of documents via e-mail. Once the documents have been received by my office, I will call and discuss the case with you. In the course of this discussion we will finalize your job duties and your employment classification, based on your education and experience. I will inform you if we need any further documents. If the documentation is complete and the payments have been made in full, we will file your application within 1 week of receipt of all documentation and payment.

Please note that we offer excellent services as our systems are all automated. You will receive an e-mail whenever there is some change in the status of your case. I am available to respond to any questions that you have. We will send you all correspondence promptly and will respond to all your phone calls and e-mails the same day.

In addition we have a case management system which we have made available to our clients, we will give you a user name and password so that you can check the progress of your case internally within our office. By logging into this system you can find out if we received any correspondence from the concerned labor or immigration officer, you can find out which Para-legal has been assigned to you case, and when the case was filed, you can upload Zip files directly to this system, instead of mailing them to us, you can print your case, or your receipt or approval or any other documents in your file. All files are stored electronically. We have provided this facility to you so that your case may be processed quickly and information is available to you upon demand.

Please do not hesitate to contact me if you have any questions.Call the New York immigration attorney The Law Offices of Prashanthi Reddy, PLLC, at (212) 354-1010 or describe your problem for us in an email using this form."

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