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In an employment-based permanent residence (green card) process, both employer and employee must qualify under U.S. immigration laws. On the one hand, the U.S. employer needs to demonstrate that there are no U.S. Citizens or permanent residents in the state who are ready, willing and able to do the work that the foreign employee is being hired to do at the prevailing wage. On the part of the employee, he/she must demonstrate that he/she is qualified for the position in terms of either academic, work experience or a combination of both.

There are 3 steps to obtaining a Green Card (Permanent Residence) through employer sponsorship.

Step 1: PERM Labor Certification & Recruitment

Step 2: I-140 Immigrant Petition for Alien Worker

Step 3: I-485 Adjustment of Status Application

Step 1 - PERM Labor Certification:

• PERM Labor Certification first involves advertising the position to show that there are no qualified U.S. workers that want the position.
• The attorney prepares a prevailing wage request based on information obtained from the company regarding the qualifications for the position and the salary offered. The attorney prepares an advertisement for the position and makes a prevailing wage request to the State Workforce Agency (SWA).
• Once the prevailing wage is issued by the SWA, the attorney provides the required guidelines on where and how often the ad must be run. The guidelines for this process are very specific and have to be tracked during the recruitment period.
• The advertising involves 2 Sunday ads in the major newspaper where the job is located, and a 30-day posting with the State Workforce Agency. Additionally other recruitment must be conducted and documented such as participation in job fairs, campus placement offices, employer’s website, placement agencies, local papers etc.
• After the required 30 day recruitment period is completed, the PERM petition is filed with the Department of Labor (DOL).
• It takes the DOL an estimated 1 to 6 months to provide the PERM labor certification – though times may vary from case to case and may also vary depending on the DOL’s caseload.

Step 2 - I-140 Immigrant Petition for Alien Worker:
• Once the PERM Labor Certification is approved, the Alien Worker Petition is filed.
• The I-140 Petition is submitted to the USCIS with documentation showing the employee’s experience and qualifications such as diploma, resume, transcript.
• The employer provides documentation such as brochures and information on the work and history of the company as well as the company’s last three years’ tax returns. Tax returns are required to show that the employer has the ability to pay the salary offered to the employee.
• The employer drafts a letter about the background of the company as well as detailing the specific position and how the particular employee meets the required experience for the position.
• Processing time is approximately 9 months, but may vary from case to case and on the caseload currently being processed by USCIS.

Step 3 - I-485 Adjustment of Status:
• After the Alien Worker Petition is approved, the employee is eligible to file for Adjustment of Status. The adjustment of status process is the application for the actual green card.
• The adjustment of status application cannot be filed until the employer’s priority date is current. The Department of State issues these dates every month and are subject to change each month. Visa priority dates may also retrogress, meaning visa numbers may become backlogged and therefore unavailable. Whether or not a visa number is available depends on the type of green card petition filed and can vary depending on the classification of the employee.
• An employee in this stage of the process may concurrently apply for a temporary work permit while he/she awaits adjudication of the green card. Typically a work permit is issued within 90 days after the application is received. The work permit is issued in one year increments and can be renewed each year until the green card is approved.
• Current I-485 processing time is approximately 9 months.

An immigration attorney can assist companies and potential employees in determining the likelihood of success of a petition and the best method to employ in order to increase the chances of approval at all stages of the multi-step process.

For more info on green cards through employment click here.

For info on temporary work visas, work in the U.S. click here.

Overview

When you enter the U.S. on a nonimmigrant visa, such as on a visitor (B), student (F1), temporary worker visa (H-1B; L; E etc.), you are allowed to be present in the U.S. for a specific purpose and for a limited time period.

The time period allowed will typically be stamped by a U.S. immigration inspector after the inspector has examined your passport and visa. The inspector will provide you with a Form I-94 (Arrival/Departure Record) which is normally a white card stapled inside your passport. This record should indicate when you must leave the U.S. When you leave the U.S. you will need to turn in your Form I-94.

It is important not to confuse the validity dates of the underlying visa itself with the date provided on your I-94. For example, having a ten-year tourist visa in your passport does not mean that you can stay in the U.S. for ten (10) years upon a single entry. A typical period of stay provided on a tourist visa is usually six (6) months. After six (6) months, to comply with U.S. immigration laws, you will either need to request an extension of your stay, change status or depart the U.S.

Some nonimmigrants such as F-1 students and diplomats have the abbreviation “D/S” written on their I-94 cards. D/S means “duration of status”, which indicates that person may remain in the U.S. as long as he/she continues a course of studies or continues with required employment.

The Importance of Staying in Status

If you are in the U.S. and you wish to stay longer, you must apply for an extension BEFORE your authorized stay expires. It is extremely important to keep valid status in the U.S. if you wish to be eligible for further immigration benefits such as an extension of your current stay, or changing status to another status. Failure to apply for an extension can have serious consequences and may subject you to removal (deportation).

Eligibility
You may apply to extend your stay if you were lawfully admitted into the United States with a nonimmigrant visa, your nonimmigrant visa status remains valid, and you have not committed any crimes that would make you ineligible. You must apply to extend your status if you wish to stay longer than the date indicated in the lower right-hand corner of your Form I-94 (Arrival-Departure Record). As mentioned earlier, you must submit the application for an extension of stay BEFORE your current authorized stay expires. You must also keep your passport valid for your entire stay in the United States.

You may not apply to extend your stay if you were admitted to the United States in the following visa categories:

• (VWP) - Visa Waiver Program
• D - As a crewman
• C - As an alien in transit or in transit without a visa
• K - As a fiancé of a U.S. citizen or dependent of a fiancé
• S - As an informant (and accompanying family) on terrorism or organized crime

For the following categories of nonimmigrants, your employer will need to file an extension for you:

E - International Traders and Investors
H - Temporary Workers
L - Intracompany Transferees
O - Aliens of Extraordinary Ability
P - Entertainers and Athletes
Q - Participants in International Exchange Programs
R - Religious Workers
TN - Canadians and Mexicans Under NAFTA

If you are in the following nonimmigrant categories, you may file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents:

A - Diplomatic and other government officials, and their families and employees.
B - Temporary visitors for business or pleasure.
F - Academic Students and their families
G - Representatives to international organizations and their families and employees.
I - Representatives of foreign media and their families
J - Exchange Visitors and their families
M - Vocational Students and their families
N - Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

Extension of Stay for Spouse and Children

If you are here under a status that requires your employer to file for your extension, then your spouse and child file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents to extend their stay. It is best to submit both your extension and your family’s extension forms at the same time.

If you are eligible to file for your own extension, you may include your spouse and any unmarried children under the age of 21 in your application if you are all in the same nonimmigrant category. You may also include your spouse or children in your application if they were given derivative nonimmigrant status. This means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 “Academic Student” visa, then the spouse and child are given F-2 “Spouse and Child of an Academic Student” visas.

When to Apply

USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires, but the USCIS Service Center must receive your application by the day your authorized stay expires. It is not recommended to wait until the last minute to prepare an application. An attorney who is preparing a filing for you will also need some time to properly advise and prepare an extension request.

Filing Late (Filing after stay has expired)
If you are late filing for an extension and your authorized stay has already expired, you must prove that:

• The delay was due to extraordinary circumstances beyond your control;
• The length of the delay was reasonable;
• You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
• You are still a nonimmigrant (This means you are not trying to become a permanent resident of the United States. There are some exceptions.); and
• You are not in formal proceedings to remove (deport) you from the country.

It is not easy to have to provide evidence of the above therefore it is obviously best not to be put in this position in the first place. It is advisable to consult with an attorney if you are in this position.