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Concurrent Filing – I-140 and I-485
What Is Concurrent Filing?
Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.
Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.
Must Concurrent Filing Be Used?
Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait.
Who Is Allowed To File Concurrently?
Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.
Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.
Can Form I-485 Be Filed After the I-140 Is Filed But Before It Is Approved?
Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.
What Are the Benefits of Using Concurrent Filing?
One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).
Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.
What Are the Risks of Using Concurrent Filing?
One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.
Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.
Will Concurrent Filing of an I-485 Result in a Faster Grant of Permanent Resident Status?
Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.
If Concurrent Filing Is Not Used, Will It Delay the I-140 Adjudication?
To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.
Can Concurrent Filing Be Used If More Than One I-140 Is Filed on Behalf of the Same Beneficiary?If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?
Yes, with a few caveats.
Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.
The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.
If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.
The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.
Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.
If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?
No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.
Should a Concurrent I-485 Be Filed When Approval of the I-140 Is Uncertain?
Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.
Are There Any Disadvantages to Concurrent Filing?
The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.
What Happens If the I-140 is Denied?
If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.
However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.
Does the Concurrent Filing Rule Affect "Portability?"
Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.
Litigation to Challenge Agency Delays
Why is the adjudication of some applications delayed for long periods of time after normal processing time?
Although on occasion the reason for government adjudication delay may be an investigation of a particular factual or legal issue or even the government’s mishandling or losing of a file, the very large percentage of delayed application are delayed because of pending security, name check or criminal clearances. Since these clearances are considered a matter of national security, the government will not provide any details regarding the type of clearances that are pending or any likely date for resolution of the clearances.
What is the chance that repetitive inquiries will expedite the adjudication of the application?
What other alternatives exist to expedite the adjudication of the application?
What is a mandamus lawsuit?
A mandamus lawsuit requests a federal court judge to order the government to take action in a case. It does not and cannot request the judge to actually approve the case. If the judge believes that the delay is unreasonable, the judge may order the FBI to complete clearances and/or the USCIS to adjudicate the application within a specified period of time. Although the time specified by the judge may vary, it is often 30 to 90 days.
When do you recommend filing a mandamus case?
There is no correct or incorrect time. Certainly, it would be inadvisable to file before the expiration of normal processing times. Generally, we recommend waiting at least 1 ½ years after filing an adjustment of status application. Since many adjustment of status applications with pending security or name check clearances are approved within eighteen to thirty months after filing, the expense of a mandamus case may be saved by waiting longer than eighteen months. Our experience is that applications that are pending more than 2 ½ years often never get adjudicated or at least may be delayed for several more years. Another factor to be considered is that the longer the application has been pending, the greater the chance that a judge may consider the delay to be unreasonable.
How long does it take to get action after filing a mandamus case in federal court?
The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal.
Under what circumstances will the government expedite the clearances and the adjudication after the filing of the mandamus case?
If the government is convinced that there are “compelling circumstances” that require expediting, the AUSA will make efforts to try to get the case expedited. Examples of this could be medical issues, issues of the person losing eligibility for the benefit if there is a further delay, issues regarding the national interest, etc. In addition, even when there are no “compelling circumstances,” our experience is that many applications get expedited after the filing of the complaint and before the judge has to get involved without any formal notification that the case is being expedited.
Will the government retaliate and deny the case as punishment for the filing of the mandamus case?
What are the chances of success if a mandamus case is filed?
Where does the mandamus case get filed?
The application is filed in federal district court in one of two places: either the federal district court with jurisdiction over the place where the foreign national lives or the federal district court in Washington, D.C. The only exception is on a naturalization case where the permanent resident alien has already been interviewed (called a “336(b) case”), which must be filed in the federal district court with jurisdiction over the place where the permanent resident lives.
Who should be named as a defendant in the mandamus complaint?
All government agencies involved in the adjudication of the application could be named. Normally, this includes USCIS (and often the local district director, the regional center director and the commissioner of USICS in Washington), the Department of Homeland Security and the Attorney General of the United States. It is also often a good idea to include as a defendant the FBI, which has the mandate to process the clearances.
Who represents the government?
The Assistant U.S. Attorney.
What is the government’s likely response to the complaint?
The official response is usually a Motion to Dismiss in which the government attempts to convince the judge that a mandamus case is not appropriate for an adjustment of status or a naturalization application. In some cases, the application is adjudicated before the government files its Motion to Dismiss.
What is the likelihood that the government’s Motion to Dismiss will be granted?
Although some judges agree with the reasons given to dismiss the application, our experience is that most judges agree with the legal argument that we provide in our Reply to the Motion to Dismiss and refuse to dismiss the mandamus case.
What happens if the Motion to Dismiss is granted?
In that event, the case is dismissed; and the mandamus possibility is gone. The foreign national remains in the exact same position he was in before the filing of the mandamus case.
What happens if the Motion to Dismiss is denied?
In most cases, the government voluntarily adjudicates the application before receiving a judge’s order requiring it to do so. If that does not happen, we request the judge to issue such an order requiring the adjudication of the application within a specified period of time.
Can the judge approve the application?
No. The judge can only order the FBI to complete the clearances and order USCIS to adjudicate the application within a specified period of time.
What are the reasons given by the government why the mandamus case should be dismissed?
- cases involving national security are not appropriate for action by the federal court;
- the court should not allow the mandamus applicant to “jump ahead” of others standing in line;
- the government has complete discretion regarding how long to take in adjudicating an application, and its discretion is not subject to court review;
- the government has no duty to adjudicate the application;
- the amount of delay in a particular case is not “unreasonable.”
Can the judge order the government to pay attorneys fees?
If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorneys fees under the Equal Access to Justice Act.
Can an employer, including a university, be a party to the mandamus case?
When the mandamus case seeks action on a petition in which the employer (including a university) is the petitioner, the employer can and must be a plaintiff in the litigation.
Can a mandamus case be filed on behalf of someone outside of the United States?
There are more complicated issues involved when the mandamus case is filed on behalf of someone outside of the United States. It may be possible to file such an action if there is a U.S. petitioning employer and if the defendant is the Department of State in Washington rather than the U.S. Consulate overseas. The court would have to be convinced that it has jurisdiction over the case because of the action or inaction of the Department of State or other government entity in Washington, as opposed to the action or inaction of a U.S. Consulate overseas, since the court would likely hold that it has no jurisdiction over the U.S. Consulate overseas.
Are naturalization cases the same as adjustment of status cases?
Although the issues are a little bit different, a mandamus case can be filed for a long-pending naturalization applicant just as for a long-pending adjustment of status applicant. There are special provisions available if the naturalization applicant was interviewed and if no decision was made on the application for more than 120 days following the interview. In that event, the federal court judge can be requested to not only order USCIS to adjudicate the application but actually to have the federal court judge hold a hearing and decide the naturalization application.
EB-1 and NIW Cases
What is KILP’ experience with EB-1 and NIW petitions?
A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.
How does KILP assist with the petition?
The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards. In addition to working with you, we assist your referees in framing your achievements in terms a lay person can understand. Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements, and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate. These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.
With whom will I be working? Who is in charge of my case?
Although I am responsible for your case and am available to you as needed, we work on all cases as a team. In addition to myself, you should expect to be communicating with at least one other professional, a technical writer, in my office. The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.
What are my obligations?
You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information. As best you can, this information should be written in terms that a lay person could understand. It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts. We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information. This is therefore very much a collaborative effort between yourself and our team. For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement. You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.
Will you give me any guidance in preparing the requested input statement?
Of course. We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form. The Input Questionnaire also outlines documentation that you will need to send. When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire, and guide you specifically on what is needed for your individual situation. This call will be about an hour. We will also provide samples of input statements to give you an idea of the level of detail and technicality required.
What is the time frame for preparing the case?
Our work generally takes about two months from the time you provide us the requested information to get started with our work. We estimate approximately another two months for you to review and edit the reference letters, for us to make the requested changes, for you to forward the reference letters to the referees, for the referees to review and sign the reference letters and get them back to us, and for us to prepare the final transmittal letter to USCIS.
How long will it take the government to decide the case?
Government processing times vary, and the most current processing times are posted at www.uscis.gov. Presently, the average government processing time for EB-1 cases is about 8 months. The average government processing time for NIW cases is also about 8 months. The average processing time for the application for permanent residence is six months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current. The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is ninety days.
Should I file 1 petition or multiple petitions?
We generally recommend filing multiple petitions. We do not charge additional for filing both an EB-1 and an NIW application at the same time.
Should I file the application for permanent residence at the same time (concurrently) with the I-140 Petition?
If you are not subject to a quota backlog, you have the option of filing concurrently. Once we are working on your case, we will provide our recommendation; but the final decision is yours.
What are the legal fees, and what do the legal fees include?
We will provide you a fixed legal fee during the consultation once we evaluate your case. The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation. Please ask any questions you may have about the quoted legal fee and what it includes.The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays. In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx. Rather, we add 6% to each legal fee payment to cover the expenses. We accept Visa, MasterCard and Discover.
What are the government filing fees?
The I-140 government filing is $700. If you file more than one I-140, you will need to pay the $700 with each petition. The filing fee for the I-485, including employment authorization and travel document applications, is $1,225. If you are including spouse or children fourteen years of age or older, they will also need to pay the $1,225. For children under 14, the filing fee is $750. Government filing fees are separate from legal fees.
Do we need to meet during the course of the case?
You are always welcome to schedule a time to come in and discuss your case. However, most people prefer to communicate by email and telephone.
What should I look for in choosing an EB-1/NIW attorney?
Click here to review a list of qualifications that you may want to consider in choosing the best EB 1/NIW attorney.
How do I get started?
Please advise me if you wish to pay the retainer payment by check or credit card. If you wish to pay by credit card, we will email you a credit card authorization form. Once we receive your retainer payment, we will schedule the input call and proceed as we explained above.
Are you interested in receiving referrals of friends and colleagues who need immigration assistance?
Many of our clients are referred by universities and hospitals, as well as our appreciative EB-1 clients. We very much appreciate your referrals.
Employment-Based Permanent Resident Status or “Green Card”
What is a “green card”?
A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.
Who is eligible to apply for permanent resident status or a green card?
There are five categories of individuals who are eligible to apply for permanent resident status. They are:
- Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
- Employment-Based Immigrants (see below).
- Investment-Based Immigrants (Investors of $500,000 – $1 million in a U.S. business that creates jobs for ten U.S. workers).
- Refugee and Asylum (Persons fleeing persecution in their home countries).
- Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).
What is the process for obtaining an employment-based green card?
The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.
Is it necessary to be sponsored by an employer?
No. If an individual qualifies as extraordinary in his or her field or if his or her work is in the “national interest,” then he or she may file a self-sponsored petition.
What is the labor certification process?
Protections for U.S. workers are built into the system. Most employment immigrant cases require Department of Labor certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that admitting the immigrant will not negatively impact the wages and working conditions of similarly situated U.S. workers.
Who can qualify without the labor certification process?
The categories exempt from this requirement are those individuals who are recognized to be extraordinary in their field, whose employment is in the “national interest,” or who are outstanding professors or researchers, multinational managers, investors, certain religious ministers or workers, and a small number of “special immigrants.”
How long will it take to obtain a green card?
It is quite difficult to accurately predict exactly how long the process will take. Employers must consider the processing time for petitions and applications at the United States Citizenship and Immigration Services’ Regional Service Centers, the PERM process for labor certification processing for the Department of Labor and also the availability of visa numbers. No approval is guaranteed. Cases may take anywhere from 18 months to four years or more depending on these factors.
May the employee remain in the U.S. during the immigrant process?
An employee may not remain in the U.S. merely because a labor certification or immigrant visa petition is pending. The entire process may take place in the U.S. if the individual is able to maintain his or her valid nonimmigrant visa status (J-1, H-1B, L-1, etc.) until the Form I-485, Application to Register Permanent Residence or Adjust Status can be filed. Once the I-485 is filed, the employee may remain in the U.S. until it is adjudicated.
May an individual work while a petition is pending?
An individual may not be employed in the U.S. merely because a labor certification or immigrant visa petition is pending. An individual may work while a petition is pending if he or she is authorized for employment in the U.S. by maintaining a valid nonimmigrant working visa status such as H-1B or L-1. In addition, he or she may file a Form I-765, Application for Employment Authorization, at the same time the Form I-485 package is submitted. Approval of the Employment Authorization Document (EAD) allows the individual to work even without a valid nonimmigrant working visa status.
May an individual travel while their petition is pending?
An individual may travel during the labor certification process and while the I-140 is pending if he or she has a valid nonimmigrant visa. An individual may travel while the I-485 adjustment is pending if he or she has obtained an advance parole document and/or is currently in valid H-1B or L-1 status.
What happens if an individual switches jobs or changes employers while a petition is pending or after it has been approved?
For an employer-sponsored petition, a change in employer (or even location of employment) will likely mean that the process must start over from the beginning unless the change takes place more than 180 days after the filing of the I-485 package and the change is to a position in the “same or similar” occupation. Self-petitioners who change employment within their field will usually be able to continue with the pending petition.
After having received an immigrant petition approval notice, when can an individual expect to be scheduled for an interview?
If an individual elects to complete the process abroad at a U.S. Consulate, it could take four to ten months before an appointment is scheduled. If he or she elects to remain in the U.S., the adjustment of status process can take from 12 to 24 months or more.
How long must a legal permanent resident (LPR) remain with an employer?
There is no required amount of time that an LPR must remain with an employer. LPRs must be able to demonstrate that their intention at the time of adjustment to LPR status or entry as an immigrant is to remain with the sponsoring employer indefinitely.
Is there any required amount of time that an LPR must remain in the U.S.?
Yes. Absences of one year or more may result in loss of LPR status unless a reentry permit is applied for in advance of departure from the U.S. Absences of six months or more may result in questioning upon return to the U.S. as to whether the LPR has abandoned his or her residence in the U.S.
Does an LPR lose his or her citizenship?
No, LPR status in the U.S. does not affect one’s citizenship of another country.
May an LPR apply for U.S. citizenship?
Yes. An LPR may apply for naturalization as a U.S. citizen after maintaining LPR status for five years, assuming certain residence and physical presence requirements are met. If an individual is married to and living with a U.S. citizen, then he or she may apply after maintaining LPR status for three years.
Is an LPR required to give up his or her citizenship if he or she applies for naturalization as a U.S. citizen?
The U.S. can only confer U.S. citizenship on an individual, and cannot force a person to lose any other citizenship which they hold. In some instances, an individual’s country of citizenship will regard the person as having lost citizenship in his or her country of nationality when he or she becomes naturalized as a U.S. citizen. Individuals who wish to maintain dual citizenship should consult with officials of their country of current citizenship.
May a spouse and dependent children (unmarried children under the age of 21) be included in the I-140 petition and subsequent I-485 adjustment of status application?
Yes, a spouse and dependent children may be included.
Are spouses and/or dependent children eligible to apply for employment authorization and an advance parole travel document?
Yes, all applicants who apply for adjustment of status are eligible to apply for employment authorization and advance parole.
H-1B Nonimmigrant Status For Professionals
Who may obtain H-1B status?
H-1B nonimmigrant status is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.
What is a specialty occupation?
A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.
What is involved in applying for H-1B status?
A Labor Condition Application (LCA) is submitted online with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file the Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. Consulate, or will be granted a change of status if they are in status in the US.
What are the filing fees for H-1B status?
The filing fee is U.S. $460. Employers must also pay a $1500 ($750 for employers with 25 employees or less) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee. Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $1,410 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
What documentation is required to file a petition for H-1B status?
The following documentation is required:
- An approved LCA from the DOL.
- Documentation that the job qualifies as a specialty occupation.
- A copy of the individual’s U.S. degree (bachelor, master or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.)
- A copy of any required license to practice the occupation in the state of intended employment.
How may an individual determine if a foreign degree is equivalent to a U.S. degree?
An individual may request an evaluation from a reputable credentialing agency.
Is there a certain wage that must be paid to an H-1B employee?
Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).
How does an employer determine the prevailing wage?
An employer may request a prevailing wage determination from the State Employment Service Agency (SESA) or may rely upon wage data from an independent survey if the survey meets the Department of Labor requirements.
May an H-1B employee work part-time?
Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.
How long does this petition process take?
It may take from 6 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides an option to pay an extra fee of $1000 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
Are there any times of the year when new H-1B visas are unavailable?
Yes. In recent years, the quota or “cap” for H-1B visas has been reached as early as mid-May. When the cap is reached, no individual may obtain an H-1B until October 1 of the following fiscal year unless the individual is already in H-1B status and seeking an extension, change of employer, or addition of employer. H-1B petitions may be filed as soon as six months ahead of time, or on April 1 for an October 1 start date.
May an H-1B individual work for more than one employer?
An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.
How long may an individual remain in H-1B status?
In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.
What happens if the employment is terminated before the employee’s H-1B status expires?
If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status.
May an employee in H-1B status travel outside of the U.S.?
Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad.
May an employee in H-1B status with a pending extension travel outside of the U.S.?
Yes, an employee in H-1B status with a pending extension may travel outside of the U.S. However, if the current valid H-1B status expires while the employee is abroad, then the individual must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S.
May an individual in the U.S. in a nonimmigrant visa status change to H-1B without leaving the U.S.?
Yes, if he or she meets all of the criteria for H-1B status and is in valid nonimmigrant status.
How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their home country while visiting there after changing status in the United States. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.
What happens if an H-1B wants to switch employers?
If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.
What happens if an H-1B employee changes positions but remains with the same employer?
Unless the change in position is an insignificant change, a new LCA and H-1B petition will have to be filed.
What happens if the employer transfers the H-1B employee to another location?
In most cases, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term transfer.
Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition?
No, unless the employer has been found to be a willing violator of the LCA regulations.
What is the immigration status of an H-1B employee’s family in the U.S.?
A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the spouse is eligible for a different status than H-4 (including H-1B), the spouse may elect to enter the U.S. in that status rather than entering as an H-4. Spouses should note that an offer of employment from a U.S. employer is required in order to obtain most types of work-authorized nonimmigrant status.
May a spouse and/or dependent minor children in H-4 status obtain employment authorization?
Some H-1B spouses are eligible for employment authorization once the H-1B spouse has made it part of the way to permanent residence (a “green card”) through an employer. Spouses in H-4 status are not eligible to obtain employment authorization until the H-1B spouse has an approved I-140, Immigrant Visa Petition, in a category for which there is a backlog of immigrant visa processing, or until the H-1B spouse has completed six years in H-1B status and is able to obtain a further extension of his or her H-1B status. Children in H-4 status are not eligible for employment authorization.
May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?
Only individuals in H-4 status who also have employment authorization are eligible to obtain Social Security Cards. Other individuals in H-4 status may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the U.S. Internal Revenue Service (IRS).
What Is PERM?
PERM is a system through which employers can hire a foreign national by submitting an application electronically or by mail to DOL in which they attest that they have taken certain steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker for the position. Employers will be responsible for documenting their compliance with the recruitment steps enumerated in the regulations, but they will only submit that documentation to DOL if DOL chooses to audit their applications. All labor certification applications for full-time permanent positions filed on or after March 28, 2005, must comply with these regulations.
Where And How Are PERM Labor Certification Applications Processed?
PERM centralizes processing of labor certification applications at two national processing centers, one in Atlanta and one inChicago. Previously, labor certification applications were filed locally with State Workforce Agencies (SWAs), the state-level organizations responsible for unemployment insurance, job training and placement of workers. Under the PERM program, applications are no longer submitted to SWAs for processing, though SWAs will continue to provide determinations of the prevailing wages for occupations through their Labor Market Information (LMI) units.
How Long Will It Take DOL To Process A PERM Application?
Through electronic filing and the audit-based adjudication process, DOL reports that “clean” applications take less than 60 days to adjudicate. In users’ experience, applications may be processed very quickly – sometimes in less than a week – but normally take 60-90 days. Processing times for audited cases also vary, with some being decided quickly and others not processed for months.
How Is Recruitment Being Handled Under PERM?
PERM’s goal is to make nationally uniform the requirements for the recruitment steps an employer must take prior to filing an application for labor certification, and to require every application to undergo pre-filing recruitment. Employers must utilize several forms of recruitment within the six months prior to filing the application, must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity on site at the company as well through any in-house company media in which jobs are ordinarily posted, and must secure a prevailing wage determination from the SWA.
What Print Ads Are Required Under PERM?
Prior to filing an application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Application for Permanent Employment Certification, Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage, as determined by the SWA.
Must A SWA Job Order Be Placed Under PERM?
The employer must place a job order with its local SWA for the position. The job order should contain the same information as the advertisement, and the employer should request that the SWA refer any potentially qualified applicants directly to the employer.
Are Recruitment Steps For Professional And Non-Professional Jobs The Same?
The recruitment for a professional occupation (those for which the attainment of a bachelor’s or higher degree is the usual education requirement) consists of a job order and two print ads plus three additional steps. The recruitment for non-professional occupations consists only of a job order and the two Sunday advertisements.
What Are The Three Additional Recruitment Steps for Professional Jobs?
An employer must both advertise the opening and carry out three additional recruitment steps, choosing from the following options: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps; i.e., may not conduct one of the three steps three times. With respect to these additional steps, an employer may advertise either for the specific job opportunity, or merely for the occupation involved in the application. All three recruitment steps must have taken place no more than 180 days before filing, but only one of the steps may have taken place within 30 days of filing. The employer must specify the dates of each of the three additional recruitment steps it has undertaken on the application form, and maintain documentation of the recruitment step, such as a dated printout from a website, or a flyer announcing the employer’s participation in a job fair.
Does PERM Require An Employer to Post a Notice of Job Opportunity?
An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. The Notice must contain the salary for the position, but may contain a salary range so long as the lower level of the range meets or exceeds the prevailing wage. The notice may contain the same description of the position as is placed in the newspaper advertisement, and should include a contact person for employees who wish to apply for the position. In addition, the notice must contain language indicating that the posting is in connection with an application for labor certification, and that any person having information bearing on the application can submit that information to the Department of Labor. Importantly,in addition to a printed posted notice, an employer must place the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. The notification must include all information posted in print, including salary range and DOL contact information. Since the notification in such media need only be done if it is the employer’s normal practice to do so for the job classification in issue in the application, an employer could avoid listing executive-level positions if it is not normal practice to do so. Duration of the in-house media notification should be as long as other comparable positions are posted.
Can An Employer Use Qualification in Excess of What DOL Considers “Normal?”
DOL will generally not allow an employer to use job requirements that exceed the requirements for a position as found in the DOL’s description of the occupation in its Standard Occupational Classification (SOC) system unless the employer can justify it on the basis of “business necessity.” To meet this exception, the employer must show that the requirements are reasonably related to the position and necessary to perform the job duties in the context of the employer’s operation. This ability to deviate from the SOC system is important, as that system categorizes jobs into far fewer categories than the Dictionary of Occupational Titles formerly used to measure “normal” requirements.
Can Experience Gained With The Petitioning Employer Be Used?
Employers may use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).
Is The Use Of Alternative Experience Permitted?
Any alternative means for a worker to be considered qualified must be “substantially equivalent” to the primary means of being considered qualified. For example, if the labor certification application involves a household cook position, it would be reasonable to require one year of experience as a household cook or, alternatively, one year of experience as a restaurant cook, as the two periods of cooking experience are comparable. It would not be reasonable to require one year as a cook or, alternatively, one year of experience as a “household worker with some cooking duties” as the alternative requirement is less stringent than the primary requirement.
If The Job Requires Four Skills And A Job Applicant Lacks One Of These Four Skills, Is This A Lawful Reason To Reject The Applicant?
Lack of one of four required skills may not be enough to lawfully reject an otherwise qualified U.S. worker. The employer will need to explore and evaluate whether the U.S. worker applicant could perform the job with a reasonable amount of on the job training in the lacking skill(s). What is reasonable will depend on the particular employer and the job opportunity. For example, if it would not be reasonable to spend six months training a U.S. worker in one of the required four skills, this would need to be explained and documented.
What Salary Does PERM Require Employers To Pay In Connection With The Labor Certification Position?
An employer must complete a Prevailing Wage Determination Request Form (PWDR) and file it with the SWA before filing the Labor Certification Application. The SWA will use its wage survey data to provide a prevailing wage unless an employer provides an acceptable alternative survey. The SWA uses DOL’s Online Wage Library to provide a wage level based on a formula that compares the employer’s requirements to the DOL’s Standard Vocational Preparation criteria. The employer also has the option of using a qualifying survey, which must meet certain specified criteria to be considered acceptable. These criteria are essentially the same as the criteria under RIR except that a median figure, not just an arithmetic mean, can in certain circumstances be used for the prevailing wage.
The employer must attest that it will pay 100% of the prevailing wage at the time that the foreign national beneficiary obtains permanent residence on the basis of the Labor Certification.
What Can An Employer Do If It Does Not Agree With The SWA Prevailing Wage Determination And It Cannot Find A Qualifying Alternate Survey?
An employer has the opportunity for one submission of additional information to persuade the SWA to change the appropriate skill level or job classification or find that the alternative survey qualifies. After that one submission is made, the employer may either appeal the SWA’s determination to the Certifying Officer or file a new prevailing wage request. If the employer does not agree with the Certifying Officer’s determination, then the employer may file an appeal to BALCA.
How Long Is The PWD Valid?
The SWA specifies the validity period of the prevailing wage on the PWDR form. It must be valid for at least 90 days and no more than one year from the determination date on the form. Employers must either begin the recruitment, or file their PERMapplications, within the validity period on the PWDR.
What Recruitment Documentation Must Be Prepared By Employer?
The employer must prepare documentation of all of its recruitment steps, such as newspaper tearsheets for advertisements and printouts of web sites. The employer should maintain copies of all resumes or applications submitted in connection with the recruitment steps. In addition, the employer must prepare a recruitment report that describes the recruitment steps taken and the results. This report shall include the number of hires and the number of U.S. workers rejected, categorized by the lawful job‑related reasons for rejection. Although it does not need to include the identity of the individual U.S. workers who applied for the job opportunity, it must track them sufficiently that an auditor can determine which resumes were evaluated for each job opportunity. The employer must sign the recruitment report and retain it as part of the supporting documentation.
What Must Employer Do If Application Is Selected For Audit?
If an application is selected for audit, the employer is required to provide the supporting documentation within 30 days of a request by a Certifying Officer (CO). After the documentation has been submitted, the CO can approve the application or deny the application. In addition, if the Certifying Officer is not satisfied that the documentation establishes unavailability of U.S. workers, the CO may require supervised recruitment after the filing. The supervised recruitment will involve a new newspaper advertisement and job order, this one directing responses to the CO, and the employer will be expected to give an applicant-by-applicant evaluation of whether the applicants met the qualifications for the position. If an employer fails to respond to a request for documentation, or is deemed to have misrepresented the recruitment steps it took or its reasons for rejecting U.S. workers, the CO may require the employer to use supervised recruitment for all of its applications for a period of up to two years.
How Long Must Employer Retain Recruitment Documentation?
The employer must retain its recruitment documentation for five (5) years from the date of filing of the application, as the DOL may reopen its labor certification determination even after approval and conduct an audit.
What Happens To Pending Cases and New Cases Prior to March 28, 2005?
Pending cases and new cases filed before PERM’s effective date will continue to be processed under the current system, if the employer wishes.
Can Cases Filed Under the Current System Be Converted To A PERM Case?
A pending case can be converted to a PERM case, while preserving the original filing date, by withdrawing the pending case and refiling it. A case may be withdrawn and refiled if it is an RIR application, or if it is a “traditional” application for which supervised recruitment has not yet begun. In order to be refiled and keep the original filing (priority) date, the application must be for the “identical job opportunity,” and must otherwise comply with all of the PERM requirements. If it is found not to be “identical,” then the earlier filing date or priority date will be lost. In order to refile, therefore, an employer would need to have conducted recruitment that meets the PERM standards no more than 180 days prior to the request for conversion. Given the expense of newspaper advertising alone, many employers will opt to leave their RIR cases pending with DOL rather than converting them to PERM.