Obtaining Lawful US Permanent Residence through Employment Sponsorship

Lawful permanent residence is an "immigrant" status (not a U.S. citizenship).
This status entitles the applicant to live and work in the United
States permanently. Obtaining permanent residence through employment
sponsorship involves going through the following three phases:

1. Labor certification approval,
2. Immigrant worker petition approval, and
3. Consular processing abroad or "adjustment of status" to permanent residence in the U.S.

QUALIFICATIONS

Foreign nationals who are skilled (having two or more years of training or experience), or educated (having an advanced degree or its equivalent) and who
have job offers have the possibility to immigrate to the United
States. Unless the employee is already legally authorized to work
in the U.S., the prospective employer must
first obtain a labor certification and approval of an immigrant
worker petition before hiring. The labor certification ("LC") process
is one of the most complex of all immigration-related procedures.

PROCEDURE

Phase 1 - Labor Certification ("LC")


During the LC process the prospective employer must be able to demonstrate
a shortage in the U.S. labor market for the sought-after position,
while the foreign national must be able to prove that he/she qualifies
for the offered position.

The LC application describes the job duties, salary, minimum experience and education requirements needed to perform these job duties. A valid prospective
employer-employee relationship must exist. However, the entire LC
process can be done for immigrants who are either inside or outside
the U.S.

The employment requirements must be normal to the occupation. They should meet the employer's business needs, but cannot
be too narrow, or tailor-made specifically for the foreign worker.

The employer must be prepared to offer the prospective employee the "prevailing wage", as determined by the Department of Labor ("DOL"),
or else justify why the wage should be lower.

In addition, the employer may need to demonstrate the company's ability to pay the prevailing wage, which may require submission
of a financial statement or tax return to DOL or BCIS.

The prospective employer must diligently test the labor market by seeking out qualified U.S. workers to fill the offered position. Any responses to the
employer's recruitment efforts must be evaluated carefully. The
employer can reject applicants only for lawful, job-related reasons.

The recruitment process results must be documented and reported to the Employment Development Department ("EDD"). EDD will screen the LC
application and either ask for additional information or send it
on to DOL for approval on the basis
that there were no qualified and available U.S. workers for the
position.

Processing at the EDD can take up to two years, depending upon normal bureaucratic delays and the number of issues raised while screening
the LC application. However, if your application is submitted and
processed as a Reduction in Recruitment ("RIR") labor
certification application, EDD, in most instances, will adjudicate
it in less than half the normal processing time. (You should inquire with
an experienced employment-based immigration attorney to determine
if your application qualifies for RIR processing.) Once the file
is transferred to DOL, processing takes an average of three
months,or longer, especially if DOL decides to issue a written
Notice of Findings.


An approved LC serves as proof that there is a shortage of U.S. workers.
However it is only a first step in the permanent residency ("green
card") process. It does not give authorization to a foreign
national to legally remain in the U.S. Neither, does it grant him
permission to work in the U.S. LC on its own does not guarantee
permanent residency. Generally, an approved LC is valid indefinitely
for a specific employer, position and location. If any of these
factors change, the LC may become a useless document.

The employer's involvement throughout this process consists of providing the necessary accurate and truthful information regarding the specifics
of the position offered, signing the employer support letter, forms
and conducting the necessary recruitment.

Phase 2 (Immigrant Worker Petition)

Once the labor certification is approved by DOL, the employer will need to file an immigrant visa petition on their employee's
behalf. The petition and supporting documents will be filed
at a BCIS California Service Center. This phase currently
takes about three months.

Phase 3 (Consular Processing Abroad or "Adjustment of Status")


Upon approval of the petition, an employee will be eligible to apply
for permanent residence at a U.S. consulate abroad or at a local
BCIS office, if he is still in valid Nonimmigrant status and
if the quota is "current" in his appropriate employment-based preference
category. In this final phase, emphasis will be based on
the employee's overall qualifications to immigrate to the U.S.,
such as, whether the employee has a criminal record, or whether the employee has a
contagious disease, etc. A qualified immigration attorney should,
of course, assist the employee (and his family) with this process
through the final interview.

In the past, a quota system existed, which was determined by the number of immigrant visas the State Department allocated under various employment-based
"preference" categories. The employee's place in line
in the quota system is "reserved" as of the date the EDD
accepts the initial LC application. This is called the "priority
date" which can be tracked each month from the State Department
published releases. The quota varied depending upon whether a degree
and/or two years' or less than two years' experience was required
to perform the job.

The priority dates are now current (and, according to the recent Department of State reports, in all likelihood, will remain current during the
next 12 months) for all five employment-based immigrant categories.
In other words, all the beneficiaries of the approved immigrant
worker petitions (BCIS Form I-140) can apply for their permanent
residency immediately, regardless of their "preference"
category.

Adjustment of status applications at the BCIS California Service Center are currently backlogged by about 15 months. However, BCIS has allocated additional
funds and personnel to reduce the backlog to a target goal of six
months. Processing at an U.S. consulate abroad takes about four
months, but that may vary depending upon the consulate used.

Once the sponsored employee becomes an immigrant, the sponsoring employer must have a good-faith intent to employ him on a permanent basis. If the
sponsoring employer lacks such intention,
the application for the employee's lawful permanent
residency status may be considered fraudulent. As a rule of thumb,
the employee should work for the sponsoring employer for at least
one year after immigration. This is not a hard and fast rule, and
BCIS will look at legitimate business reasons for not continuing
the employment (e.g., the company closes, goes bankrupt, experiences
layoffs, or employee is involved in egregious behavior, etc.)

Furthemore, employers are reminded that they are required under the Immigration Reform and Control Act of 1986 to document on Form I-9 the work permission
status of all employees (including U.S. citizens) hired after November 6, 1986.

STATUS WHILE IMMIGRANT PETITION IS PENDING

During this entire process, the sponsored employee and his/her family, residing in the U.S., should maintain their valid nonimmigrant (temporary)
status. However, the applicant (as well as his/her dependents) are
eligible to apply for work authorization upon filing for adjustment
of status in the U.S.

DEPENDENTS

Spouses and unmarried minor children (under 21 years of age) must maintain their independent status as described in the preceding section. They will be able
to immigrate as dependents if they apply along with the primary
applicant. However, if the children are over 21 at the time the
applicant immigrates, they will need to qualify for status in their
own right.