Green Card Process – Immigrant Visas FAQs

FAQs are for informational purposes only

gcfaq

What is the PERM labor certification and I-140 process, and what are the requirements?

The first step of the green card process for foreign nationals seeking permanent residence through their employment is PERM, the process for obtaining labor certification.

To get an approved PERM Labor Certification, the employer must prove (through recruiting methods) that they were unable to recruit a qualified U.S. worker for a certain position.

Requirements for PERM:

The employer plans to hire the foreign worker on a full-time and permanent basis.

  • There must be a real job opening that is available to U.S. workers.
  • The job requirements should be similar to what is ordinarily required for the occupation in the U.S., and not unduly restrictive or based off the worker’s qualifications unless there is a demonstrable business necessity.
  • The prevailing wage for the occupation in the area where the employment will be must be the minimum payment from the employer.

After the Department of Labor (DOL) certifies the PERM application, the employer will then file an I-140 Immigrant Worker Petition with the USCIS. The PERM is only valid for 6 months, so the petition needs to be filed during that time.

Requirements for I-140:

  • Employer has the ability to pay the wage offered.
  • The foreign national has the education, experience, and skills required in the PERM application.
  • Work is available for the foreign national (PERM).

When the I-140 is approved, if a visa is immediately available, the employee can then begin the adjustment of status process if in the U.S., or consular processing, if outside the U.S

What is the Green Card Process Flow for Employment Based?

Check Green Card Process Flow – Employment Based Explained

What does the prevailing wage requirement on the I-140 mean?

The prevailing wage is set by the Department of Labor at the PERM Labor Certification stage. Since the I-140 is for a future prospective job, the employer is required to prove that it has the “ability to pay” the prevailing wage at the I-140 stage. Finally, the employer is required to pay the employee (at least) the prevailing only once the employee becomes a permanent resident.

What is required for an experience letter?

An experience letter should include the following:

  • Letterhead
  • Typed
  • Signed – Note, the author of the letter should be from the HR department, Legal department, President or VP
  • Dated
  • Job title
  • Dates of employment
  • Full time or part time
  • Detailed list of duties

If an experience letter is not available, then USCIS can consider secondary evidence, as a matter of discretion. Secondary evidence can include things like:

  • Your own affidavit confirming your employment
  • Affidavits from former colleagues or managers confirming your employment
  • Job offer letter
  • Employment contract
  • Company ID
  • Promotion letter
  • Annual wage statements
  • Termination letter
  • Business card

What is the impact of a layoff on a PERM application?

If there has been a layoff by the employer in the area of intended employment within six months of the filing of the labor certification application, the rule requires employers to attest to and document that it notified and considered potentially qualified U.S. workers involved in the layoff and to document the results of such notification. In addition, DOL Certifying Officers may consider general labor market conditions – including layoffs by other employers in the industry – when adjudicating the PERM application.  These conditions could be factors in triggering an audit and supervised recruitment, although the PERM form does not ask the employer to provide such information.

Can an application be withdrawn in the event of an audit?

If an application is selected for audit, it may be withdrawn but the employer must still respond to the audit request.

Is it possible to appeal the denial of a labor certification?

Yes. The notification of denial should include a list of deficiencies and the employer may seek a reconsideration of the Certifying Officer’s denial or an appeal of the denial by the Board of Alien Labor Certification Appeals (BALCA). The employer has 30 days to appeal. While an appeal is pending, the employer may not submit a new labor certification application for the same foreign national and the same employment position.

If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?

No. Unlike the H1-B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination.

 If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?

Employer may send a withdrawal notice to USCIS anytime However the timing of the withdrawal will determine whether USCIS will revoke the I-140 or not. If the withdrawal request came within 180 days of the I-140 petition approval, then USCIS will revoke the approved I-140 petition.

But if the stipulated 180 days have already passed, USCIS will not revoke the approved I-140 petition on account of the petitioner’s notice. Even if the online case status shows “withdrawn,” as long as 180 days have passed and there is no element of fraud or misrepresentation suspected in your case, your I-140 can remain valid.

If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?

You may still retain your priority date for an approved I-140. USCIS can grant your request to retain the existing priority date for any other I-140 filed on your behalf. This applies even if the approved I-140 petition is withdrawn by the petitioning employer. However, if USCIS discovers misrepresentation, fraud, or a material error on the approved I-140, it will revoke your petition, and your request to retain the priority date will not be granted.

What documents do I need to provide for Adjustment of Status processing?

The following documents need to be provided for yourself and each family member:   

  • Birth Certificate: this must be the “long form” certificate with your name, date and place of birth and the names of BOTH parents. If your birth certificate is not in English, a certified translation must be obtained.  For additional information, see “How do I know if my birth certificate is acceptable?” 
  • Marriage certificate: if you are not married at this time, but intend to marry another non-U.S. citizen or permanent resident in the future, it may be advisable to be marry before you file for permanent residency so that your spouse can be included in the application. If you have specific questions regarding the immigration ramifications of marriage, please discuss this with your Human Resources/Immigration Department.
  • Final Divorce decree or death certificate: for previous marriages, if applicable.
  • Medical records: medical examination records completed by a USCIS-approved physician, including evidence of certain vaccinations.  These vaccinations are: Measles-Mumps-Rubella (MMR), Polio, Tetanus and diphtheria toxoids, Rotavirus Pertussis, Influenza, Hepatitis A and B, Varicella (chickenpox), Haemophilus influenza type B, Pneuococcal, and Meningococcal. There may be additional required vaccinations for children, for young females, and for persons age 60 and older. If you have not previously received these vaccinations or cannot provide evidence of your immunization history, please consult your personal physician at this time. As some immunizations are administered over a period of several months, you may wish to begin receiving these vaccinations as soon as possible.
  • Immigration documents: copies of all previous U.S. immigration documents covering all periods of stay in the U.S.  This includes but is not limited to: Forms I-20 if you held F-1 status, EAD cards, Forms DS-2019 or IAP-66 if you held J-1 status, and previous nonimmigrant petition approval notices.
  • Passports: complete copy of all passports in your possession, including expired passports, and a copy of your current I-94 record.
  • Photographs: taken according to the State Department specifications adopted by USCIS (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/photos.html
  • Criminal records: complete criminal records, if applicable. Please notify your Immigration Department immediately if you have ever been arrested, indicted or convicted in any country as this may have an effect on your eligibility for a green card or visa in the U.S.
  • Financial records: you may be asked to provide copies of W-2’s, past tax returns and bank statements.

For further information on how to obtain documents from your home country, refer to the Department of State website. Each country is listed and the procedure for obtaining documents is outlined.

How do I know if my birth certificate is acceptable?

An acceptable birth certificate generally is issued by a governmental authority (i.e., not a hospital or religious certificate) and contains all of the following information:

  • Your name;
  • Your birth date;
  • Your place of birth (city and country); and
  • Names of both parents.

You should provide a copy of your birth certificate to your attorney representative as soon as possible so that additional instruction may be given if it is not acceptable.  It can take several months to obtain acceptable documentation from some countries.

In cases where a birth certificate is unavailable or contains insufficient information regarding the birth or the parents, a sworn affidavit executed by either the parents, if living, or other close relatives older than the applicant, may be submitted. The affidavit should set forth:

  • The relationship between the relative and the applicant; 
  • How well the relative knows the applicant; 
  • The date and place of the applicant’s birth; 
  • The names of both parents; and 
  • Any other related facts.

The affidavit should be accompanied by a document from a competent governmental authority confirming that the birth certificate does not exist, or no longer exists. Note that the affidavit is not a conclusive record of birth (i.e., USCIS could decide the affidavit is not authentic or credible). Therefore, it is always best to submit a birth certificate if possible.

Do I, or my family members, have any travel restrictions while the Application for Adjustment of Status is pending?

You and your accompanying family members must physically be in the U.S. at the time the adjustment of status application is filed with USCIS. During the Adjustment of Status stage of “green card” processing, you must take care before engaging in international travel. If you have a valid H or L visa, you may use that visa to reenter the U.S. while the application for Adjustment of Status is pending. If your H or L stay has been extended, you will need to obtain a new visa before returning to the U.S. If your H or L status will expire during the adjustment process, or if you entered the United States in a nonimmigrant status other than H or L, you must obtain special permission to travel known as Advance Parole.  An Advance Parole travel document is generally valid for one or two years and may be used in lieu of a visa for international travel. Applications for Advance Parole can take 3 months or more to process, and if no longer in H or L status, travel outside of the U.S. is prohibited while the application is pending . Your family members are also eligible for Advance Parole. Adjustment applicants requiring advance parole must have the document in hand before leaving the United States or their adjustment applications will be deemed abandoned.

Family members who initially entered the U.S. in H-4 or L-2 status, have not obtained EADs based on their nonimmigrant status, and who have worked in the U.S. pursuant to an Employment Authorization Document granted in connection with their adjustment of status applications, are no longer eligible to travel on their H-4 or L-2 visas.  Instead, they must obtain special advance parole travel documents as discussed above. The rules for spouses in L-2 status who have obtained employment authorization are different and you should seek further advice if this applies to you or your family.

How will my departure from the US impact my pending I-485?

International travel will not result in the denial of a pending I-485, if the alien has obtained a valid, unexpired I-131 advanced parole travel document before departing. However, the general rule is that if you depart the US while your I-485 is pending, and before your I-131 advanced parole travel document is approved, your I-485 will be denied for abandonment.

The exception to the general rule is when an I-485 applicant is in valid L-1, L-2, H-1B, H-4, K-3, K-4, or V nonimmigrant status. In that case, the departure from the U.S. will result in a denial of the pending I-131 advanced parole application, but the pending I-485 should be unimpacted, and the alien can return to the U.S. using a valid non-immigrant visa in their passport. When they return, they can file a new I-131 advanced parole travel document.

If you need to schedule a request for an emergency advanced parole travel document, you need to first schedule an InfoPass appointment with your local field office. You can do that on the USCIS website. Then, take with you to the interview the I-131 receipt notice, 2 passport style photos and evidence of the emergency basis of your travel (e.g. medical records, death certificate, etc.).

While outside the US, and while your I-485 is pending, you should return to the US before your advanced parole travel document expires. We would advise that you not stay outside the US for over 6 months.

Finally, while outside the US, you may receive an appointment for biometrics or interview, or you may receive an RFE, so continue to track your case online, ensure someone is checking your mail, or stay in touch with your attorney.

My EB-1C I-140 was approved, and my I-485 has been pending for over 180 days. Can I port to another employer under AC21?

Not all immigration practitioners agree that AC21 applies to EB-1C petition, but our office has seen I-485’s approved by USCIS when the beneficiary ports under AC21 with an EB-1C I-140 approval. According to USCIS, “The portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) allow certain adjustment applicants with approved I-140 petitions in the 1st, 2nd, and 3rd preference categories to change jobs and employers if the adjustment application has been pending for 180 days or more, provided that the applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed.”

Once my green card is approved through my employer, how long do I have to work for them?

There is not an amount of time specified by law that you need to remain with the employer who sponsored the green card, once you receive it. However, moving to a new job not long after receiving the employer sponsored green card may be seen by USCIS as evidence that you never intended to remain in the position, calling into question the validity of the green card.

The green card could be revoked if USCIS believes there was no intention to remain in the sponsored job, but the card can usually only be revoked within 5 years of being issued. Most of the time USCIS doesn’t learn that the green card holder quickly changed employers until the person applies for citizenship, which is usually more than 5 years after the green card was issued. A good rule of thumb is to remain in the sponsored employment for 6-12 months after receiving the green card, to show good faith. If there is a change in circumstance requiring a job change sooner, evidence showing a compelling reason should be kept.

Is a permanent resident allowed to leave the U.S. for more than 6 months on one trip?

Yes, staying outside the U.S. for more than 6 months but less than one year is allowed while a permanent resident. It does not result in an abandonment of your permanent residency status. However, it may lead to additional questioning at the port of entry, and it may delay your eligibility for naturalization (continuous presence requirements).

If the permanent resident plans to stay outside the United States for a year or more they will need a Re-entry Permit, which should be applied for before leaving the U.S. The Reentry Permit is good for up to 2 years.

What if I am assigned overseas after I get my green card?

Whether an assignment overseas will jeopardize your permanent resident status depends on the length of assignment.  If you or your family members are outside the U.S. for one continuous year or more, you will be deemed to have abandoned your U.S. permanent residence.  If you or your family will be outside the U.S. for a substantial period of time, you should obtain a Reentry Permit.  This is a passport-like document that will facilitate your reentry to the U.S. after a period of two years.  Application for the Reentry Permit must be made while you are physically in the U.S.   Additionally, USCIS requires that applicants who are between the ages of 14 and 79 provide biometrics (i.e., fingerprints and photographs) at an Application Support Center before departing the United States. If your overseas assignment will extend beyond two years, you should discuss your plans with your Immigration Department.

I have a family member who is in need (e.g. developmentally disabled, sick, needs medical treatment). How do I get them here to stay with me permanently?

If the family member needs to come to the U.S. temporarily to seek treatment, they can consider a B-2 visitor visa, or humanitarian parole.

There is no permanent residency visa category specifically designated for disabled or handicapped people, nor is there a special rule requiring immigrant petitions be expedited on the basis of the disability. Therefore, the regular family or employment sponsorship routes to a green card would need to be pursued and may be limited by quotas.

Unfortunately, many of these needs may make it more difficult for this family member to be granted legal permanent resident status, as they may be found to be inadmissible. Mental conditions that could be interpreted as a mental disorder could potentially trigger a finding of inadmissibility. Additionally, someone who has a condition that requires continued treatment may be seen as a public charge, or someone who is not able to provide for them self and likely to “become primarily dependent on the government for subsistence.” This could also prevent them from being granted a visa.

When can I apply for U.S. citizenship?

There is no requirement that you apply for U.S. citizenship.  You may remain in the U.S. as a permanent resident indefinitely.  If you wish to apply for U.S. citizenship (naturalization), you are eligible to apply after you have been a permanent resident for five years.   If you are married to a U.S. citizen, you are eligible to apply for citizenship after holding your green card for three years.  The applicant for U.S. citizenship must demonstrate good moral character, no criminal record, and basic knowledge of U.S. history.  In addition, there are U.S. residence and physical presence requirements.

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