Summary of Permanent Residence Process

Employment-Based Immigration

Stage 1: Labor Certification

An Application for Alien Employment Certification (or “labor certification") filed with the U.S. Department of Labor (DOL) is typically the first step in obtaining employment-based permanent resident status. 

To obtain an approved labor certification, the employer must be able to demonstrate that there are no U.S. workers who are qualified, willing and able to perform the job offered to the foreign national.   The employer must undertake a formal recruitment effort to test the labor market prior to filing the labor certification application.  If no qualified U.S. workers are found, the application may be filed.  The current labor certification process is governed by the requirements of the Program Electronic Review Management (PERM) system. 

PERM involves the submission of a labor certification application to the DOL that contains certain employer attestations regarding the job opportunity and the employer’s recruitment activities, which are subject to a post-filing audit. A pre-filing PERM recruitment campaign for a professional position requires two advertisements in a Sunday newspaper, a 30-day job order with the State Workforce Agency, and three additional recruitment steps selected from the following options:  the employer's website, a job search website, a private employment firm, local and ethnic newspapers, the employer's employee referral program, and on-campus recruitment activities. 

Once a labor certification application has been approved by DOL, the next step is for the employer to file an employment-based immigrant visa petition (Form I-140) to classify the beneficiary in the appropriate immigrant preference category. 

There are limited exceptions to the labor certification requirement.  For example, individuals who qualify as persons of extraordinary ability, outstanding professors or researchers, or multinational managers or executives are exempt from the labor certification process and may proceed directly to Stage 2.  

Stage 2: Employment-based preference petitions

Employment-based immigrant visa petitions fall into five preference categories: 

In most cases, the sponsoring employer must file an employment-based immigrant visa petition (Form I-140) on behalf of the foreign national to request classification in the appropriate employment-based preference category.  An approved labor certification is required for classification in the second and third preference categories, with limited exceptions.
 
There are a limited number of immigrant visas available in each preference category each year.  The U.S. Department of State (DOS) controls the allocation of employment-based immigrant visas under the quota.  Each month DOS releases a Visa Bulletin announcing the availability of immigrant visas, according to priority dates for each of the employment-based preference categories.  If a labor certification has been filed, the date of filing the labor certification with DOL determines the priority date.  If a labor certification is not required, the date of filing the I-140 preference petition with USCIS determines the priority date.  

Stage 3: Application for Immigrant Visa or Adjustment of Status to Permanent Resident

The final stage is the application for permanent residence.  The foreign national may file an Application to Adjust Status (Form I-1485) (“adjustment of status”) with the United States Citizenship and Immigration Services (USCIS) or apply for an immigrant visa at a U.S. consulate abroad (“Consular Processing”). 

Permanent residence applications may only be filed if an immigrant visa number is available.  The availability of immigrant visas is published monthly by the Department of State Visa Bulletin, which indicates the availability of immigrant visas based on the foreign national’s country of birth, preference category, and priority date (see discussion of preference categories above).  If the priority date is not current, i.e., “retrogressed”, the foreign national must wait until it is current to apply for permanent residence. 

If an immigrant visa number is available at the time of filing the immigrant visa petition (Form I-140), eligible applicants lawfully present in the U.S. may concurrently file the adjustment of status application (Form I-485).  At this stage, the foreign national’s dependent family members may also apply for their derivative immigrant visas, and if filing for adjustment of status in the U.S., may also obtain travel and employment authorization. 

Family-Based Immigration

U.S. citizens may petition USCIS to classify certain family members as immediate relatives by filing a family-based immigrant visa petition (Form I-130).  Immediate relatives are not subject to immigrant visa numerical restrictions (“quotas”) and include:

• Spouses of U.S. citizens
• Children of U.S. citizens
• Parents of U.S. citizen children who have reached the age of 21

Certain other relatives of U.S. citizens and permanent resident aliens are subject to the annual quotas on visa issuance.  These include: 

Like employment-based immigrants, family-based applicants are assigned a priority date at the time the permanent resident petition (I-130) is filed with USCIS. Each month DOS publishes a Visa Bulletin announcing the availability of immigrant visas according to priority date and country of birth.  There are often long waiting lists for family-based applicants from over-subscribed countries such as India, Mexico and the Philippines.  When the priority date is current, beneficiaries of family-based petitions may apply for immigrant visas in the U.S. by filing an adjustment of status application (Form I-485) with USCIS in the U.S. or by applying for an immigrant visa at the U.S. consulate in the country of last residence. 

Diversity Immigration

Diversity Lottery Program

DOS makes immigrant visas available to a maximum of 55,000 persons annually through the Diversity Lottery program.  Each year DOS announces a registration period during which qualifying foreign nationals from designated countries may submit an application to participate in the lottery.  Foreign national applicants are selected at random through a computer-generated lottery drawing.  If selected, the individual and his/her dependents may apply for an immigrant visa.

To qualify for participation in the Diversity Lottery, an applicant must be a native of a designated qualifying country (one with low rates of immigration to the U.S.) and must possess either a high school education or its equivalent or two years of work experience within the past five years in an occupation requiring at least two years of training or experience. For more information please visit the DOS website at http://www.travel.state.gov/visa/immigrants/types/types_1318.html.

The contents of this site and the resources provided herein are for informational purposes only, do not constitute legal advice, and are subject to change.  Please contact your Gibney representative for specific legal advice.