Permanent Residency Based on Employment

Applying for permanent U.S. residence based upon an employment offer is generally a three-step process involving the U.S. Department of Labor and the Immigration and Naturalization Service.

Step 1
The employer must first obtain labor certification for the offered position from the U.S. Department of Labor. Labor certification is granted only in those cases where the employer can prove that qualified U.S. workers are not available and/or unwilling to accept employment in that position. The employer submits and ETA 750 application for Alien Labor Certification on behalf of an alien employee to the local State Employment Security Agency (SESA) office having jurisdiction over that application. Upon filing the application, the application is date-stamped by the SESA and that date is the "priority date" for the alien's permanent residence case. The priority date is the date that will be used to determine when an immigrant visa will become available after labor certification has been granted.

The SESA reviews the application and determines if all the key elements in the application are acceptable. If SESA finds that the employer's application is unduly restrictive or has excessive minimum requirements it will notify the employer to delete the excessive requirements. If the employer declines to delete the questionable requirements and submits a business necessity letter for these requirements, the case will be sent to the Department of Labor (DOL) regional office for adjudication of the business necessity arguments. SESA supervised recruitment will take place only after the DOL has returned the case to SESA for recruitment.

If SESA finds that the key elements of the application are acceptable, the SESA will issue recruitment instructions to the employer. These instructions will consist of a placement of a job order by SESA through the SESA job bank for thirty days, a posting of a notice of the job opportunity by the employer, and the placement of an advertisement by the employer. The employer will be required to review and evaluate all job applicants and to submit a recruitment report within forty-five days giving the lawful and job related reasons why each applicant did not qualify for the position.

Once SESA receives the employer's recruitment report, it will make a determination as to whether the employer has conducted an adequate recruitment campaign. That determination along with the recruitment report is forwarded to a Certifying Officer (CO) at the U.S. DOL for final determination on the labor certification application. The CO may approve the application or may issue a Notice of Finding (NOF) if the CO determines that the application is deficient in some way. The employer will have an opportunity to rebut the NOF and the CO will make a final determination as to whether to issue labor certification.

RIR
An employer who has engaged in a pattern of recruitment which resulted in a insufficient availability of U.S. qualified workers may submit a request for a Reduction in Recruitment (RIR) along with the application for labor certification. The SESA will make a recommendation on the RIR to the Regional DOL. If the recommendation is favorable, the employer will save a significant amount of time because the regional DOL will consider the request immediately. If the SESA recommendation is not favorable, and if the regional office denies the RIR request, the case is returned to SESA to await the supervised recruitment campaign. A denial of an RIR will delay the application significantly.

Step 2
Once an employer has obtained labor certification, the employer may move on to the second step of the permanent residency process which involves the filing of an I-140 Petition for Immigrant Visa with the Immigration and Naturalization Service (INS). The employer must submit evidence that a position is still available for the employee and that the employer can pay the offered wage. Current processing time for an I-140 petition is approximately 120 to 300 days depending on the region of filing.

Step 3
The final step of the permanent residency process is called the Adjustment of Status. If the permanent visa numbers are available for the individual's particular classification, the approved I-140 petition is filed with an I-485 application for adjustment of status for the alien worker and each member of his/her immediate family. An alien's "priority date" determines whether an immigrant visa is immediately available. An application for adjustment for permanent residency can only be filed if an immigrant visa is immediately available for that alien. The current processing time of the I-485 application with an available visa is approximately 240 to 365 days. Upon approval of the I-485 application, the alien worker will become a permanent resident of the United States.