Permit Application Process
With restricted exceptions, all EB-2 and EB-3 green card applications require that the employer obtain a Labor job Certification from the U.S. Department of Labor. For petitions requiring this step, the Labor Certification procedure is typically the hardest and most arduous step. Prior to being able to file the Labor Certification application, the employer should acquire a fundamental wage from the Department of Labor and show that there are no minimally certified U.S. workers offered for the positions through the completion of a competitive recruitment process.
In the case of positions that include mentor duties, the company must document that the chosen candidate is the “finest qualified” for the position. This process is commonly called “Special Handling.”
In both the “standard” and the “special handling” procedure, the employer must finish an official recruitment procedure to document that there are no minimally certified U.S. employees offered or that, when it comes to positions that have a mentor component, job that the selected prospect is the finest certified. It is common that this recruitment process need to be finished well after the foreign national worker began their position at the University.
As quickly as the Labor Certification has been filed with the Department of Labor, the “priority date” for the applicant is established. This date is very important to figure out when someone can finish action # 3, i.e. the Adjustment of Status. (If no Labor Certification is needed, the top priority date is established with the filing of the Immigrant Petition/ Form I-140.
2. Immigrant Petition
Once the Department of Labor job approves the Labor Certification, the Immigrant Petition (Form I-140) can be filed with USCIS. In cases where no Labor Certification is needed (e.g. EB-1), the filing of the I-140 is the primary step of the green card procedure.
3. Adjustment of Status or Obtaining an Immigrant Visa
Once the I-140 application has been authorized by USCIS, the foreign national can request the modification of their non-immigrant status (Form I-485) to that of a legal long-term citizen. Instead of requesting the Adjustment of Status, a foreign national may also obtain an immigrant visa at a U.S. consulate or embassy abroad.
The I-485 Adjustment of Status application can not be filed until and unless the “priority date” is existing. In practice this implies that, depending upon one’s country of birth and EB-category, there may be a backlog. The backlog exists since more people obtain permits in a given category than there are offered permit visa numbers. The total number of permits is additional restricted by the reality that, with some exceptions, no greater than 7 percent of all in a provided preference category can go to people born in a provided nation. The backlog is upgraded each month by the U.S. Department of State and is published in the Visa Bulletin.
Once someone’s top priority date date has actually been reached, as indicated in the Visa Bulletin, the I-485 can be filed. The top priority date is the date on which the Labor Certification was filed with the Department of Labor, or, if no Labor Certification was needed, USCIS received the I-140 petition.
Note that the Visa Bulletin contains 2 different tables with top priority cut-off dates. The actual cut-off dates are suggested in table A “Application Final Action Dates for Employment-based Preference Cases.” However, in some instances, USCIS may accept the I-485 application if the top priority date is present based on table B “Dates for Filing of Employment-based Visa Applications.” Note that USCIS will make a determination whether Table B might be utilized several days after the main Visa Bulletin is released. USCIS publishes this information on its site committed to the Visa Bulletin.
In some cases, it might be possible to submit the I-140 and I-485 at the very same time. This is not always suggested, even if it is possible. If the I-140 is rejected, the I-485 will likewise be denied if filed simultaneously.
