+ Labor Certification

Also known as “PERM,” the Labor Certification stage is required for most industries and occupations, except for those qualified under other employment-based categories such as the “Outstanding Ability,” “National Interest Waiver,” and “Exceptional Ability.”

The full Labor Certification process is also not required for certain healthcare workers such as Registered Nurses, Physical Therapists, and Occupational Therapists.

In this stage, the employer performs a “test” of the labor market by advertising the job offer in a manner prescribed by government regulations. The advertised job offer must be the same job that is offered to the prospective employee. It is only when there is no qualified, willing, and able U.S. worker that the actual application for Labor Certification is submitted to the government.

When the Labor Certification application is “certified,” then the process moves to the next step.

+ Immigrant Petition for an Alien Worker

Also known as the “I-140 stage,” so named because of the form number that is used by the government. The employer fills out, signs, and submits the petition on the prescribed form, together with the government filing fee, and evidence that shows that it meets the legal requirements for a successful petition.

Legal requirements vary slightly depending on the job offer’s occupation and industry, but in general the most common requirements are:

• The employer is offering a bona fide job offer
• The employer has the ability to pay the offered wage
• The employee qualifies for the job offer by virtue of his or her meeting its education, training, or experience requirements

When the petition is approved, it establishes a “Priority Date” for the prospective employee. This Priority Date is the employee’s number in the queue maintained by the government in determining whether too many or too few immigrants have already gotten their visas in any given year, based on quotas fixed by law. Visas are issued on a “first-come, first-served” basis. The government “calls” the numbers every month via a “Visa Bulletin” published online.

It is only when the prospective employee’s “number” or Priority Date is “called” can they apply for the immigrant visa that will allow them to enter the U.S. as a permanent resident, or if they are already in the U.S. under a valid visa, apply for a change or “Adjustment of Status” into a permanent resident.

+ Immigrant Visa Application / Adjustment of Status Application

The final step in the employment-based immigration process will depend on whether the prospective employee is physically present outside the U.S. or inside the U.S. under a valid visa.

If they are outside the U.S., then they must apply for an “immigrant visa” at a U.S. Embassy or Consulate that has jurisdiction over the place of their residence. This visa will allow them to travel to the U.S. as an immigrant.

If they are present in the U.S. under a valid visa (certain exceptions apply), then they must apply to adjust their status to a permanent resident with the U.S. Citizenship and Immigration Services or USCIS. An Adjustment of Status application is commonly filed together with an application for Employment Authorization or a temporary “work permit.”

In both methods but with slight variations between the two, the prospective employee must fill out, sign, and submit the application forms, together with the government filing fee, and evidence that shows that they meet the legal requirements for eligibility to become a permanent resident. A medical examination is also required, to show that the prospective employee does not have a physical or mental condition that may pose a threat to the health and safety of others, which includes alcohol or substance abuse.

The prospective employee may include their spouse and children below 21 years of age in the application process. These “derivative” applicants, if they meet the requirements in their own right, will also receive the same kind of permanent resident status as the principal applicant.

+ “One-Step” Applications

If an immigrant visa is currently available for the prospective employee at the time of filing the Adjustment of Status application, and they are present in the U.S. under a valid visa, then USCIS will authorize the concurrent or “one-step” filing of the Immigrant Petition for an Alien Worker and the Adjustment of Status Application.

This is the most common scenario for prospective employees who qualify for the Outstanding Ability, Advanced Degree, or other visa categories that have more supply of visa numbers than demand by applicants.