Employment-Based Green Card Questions

Your Green Card Questions Answered by immspec.com.

This section covers some common questions people have about employment-based immigrant visa ("green card").

1. What are the responsibilities of the employer when sponsoring an Immigrant Visa for a foreign worker?

2. My employment-based Green Card process is still pending. I want to go back home and get married. When should I plan the wedding? Should I wait until after the Green Card is approved?

3. I'm from India and I'm in a Non-Schedule A occupation. How long will it take for me to get a Green Card? My friends are warning me about changing jobs too often...that I'll run out of time...what do they mean?

4. What is involved in the Green Card process and how long will it take?

5. What's the difference between a Schedule A occupation and a Non-Schedule A occupation?

6. What will determine the success or failure of the Labor Certification for "Schedule A" Occupations"?

7. What is a "Priority Date" and what does it mean to be "current"?

8. When my Green Card process is complete, must I continue to work in the profession in which I entered on H-1B status?

9. I've been in the U.S. for a while now, working on an H-1B visa. I don't have my Green Card yet and am thinking about starting the process. How long does it take? What's going to happen to me if I don't get it before my 6 year limit is up?

10. What are employment-based preferences and which one will I qualify in?

11. My friends tell me about a "fast-track" green card...what is that and how can I get one?

1. What are the responsibilities of the employer when sponsoring an Immigrant Visa for a foreign worker?
Sponsoring a green card for a foreign worker means that the US- based employer is offering the worker full-time, permanent employment, once the immigrant visa is issued. "Permanent" means the same as for any offer of employment - without a fixed termination point, or indefinite.

The employer must show the ability to pay the alien's salary at the time that the priority date is set.

The employer and the foreign worker must both have the intent to undertake the employment relationship. Though it is not clearly stated, we usually recommend that the foreign worker intend to remain with the sponsoring employer for at least six (6) months after the immigrant visa is issued, to show good intent.

2. My employment-based Green Card process is still pending. I want to go back home and get married. When should I plan the wedding? Should I wait until after the Green Card is approved?
If your Adjustment of Status has not been approved as yet, you should plan to get married in your home country BEFORE it is approved (if you leave the U.S. while your Adjustment is pending, remember to obtain a Travel Document before you leave - or see new rule). After the marriage takes place, you can submit forms for the new spouse "following to join" and your new spouse will have to wait to join you after receiving the immigrant visa at your home country U.S. embassy.

If you wait to get married until after the permanent residence is granted, the resident alien must sponsor the new spouse on a family-based petition. The new spouse will be classified in the second (2A) family-sponsored preference, and there is a waiting list for visas to immigrate in this category, regardless of the alien's country. It could be a few years before the new spouse could join you. (This isn't a very good option for two people in love, is it???)

Now, some have asked, "If I leave to get married while my adjustment is pending, can I bring my husband/wife back with me?" The answer is "NO". The reason is, when your adjustment is pending, you are no longer in H-1B status, so the new spouse could not enter on an H-4 dependent visa. If your H-1B still has validity, the only way to bring the new spouse back with you, would be to withdraw your I-485, before you leave the U.S. for your wedding. At that time, you would revert back to the H-1B status, travel to your home country on the H-1B visa, get married, go to the embassy to obtain an H-4 dependent visa for your new spouse, and both of you can re-enter the U.S. Then, after arrival, you both could submit the I-485 to begin the Adjustment of Status.

If you haven't begun the Adjustment of Status yet, the best solution is to travel on your valid H-1B visa and return home for your wedding before making application for Adjustment of Status! Bring your new spouse back with you on an H-4 Visa and then both of you will apply for Adjustment of Status together.

3. I'm from India and I'm in a Non-Schedule A occupation. How long will it take for me to get a Green Card? My friends are warning me about changing jobs too often...that I'll run out of time...what do they mean?
A worker in a Non-Schedule A occupation from India may currently plan to spend as much as three to four years, or longer, waiting for the Green Card to be approved. The reason for this is two-fold:

1. Skilled workers in Non-Schedule A occupations must undergo a "labor certification" as the first phase in the Green Card process, which alone can take 12 - 18 months or longer, depending on the state in which it is filed. The remainder of the process can take another 12 - 18 months or longer, depending on the priority date (currently all healthcare workers are "on hold" once they get to the adjustment of status phase).
2. Workers from India (usually) experience a backlog in visa numbers available to them, and may be looking at as much as two (2) to three (3) years or more before their priority dates become current and they can proceed to the adjustment of status. (UPDATE 10/99: As of this writing, Priority Dates for India have been current since August, meaning there is no backlog of available visas. However, there is no way of knowing how long this situation will last.)

So, your friends are right. You should find a good employer willing to sponsor your Green Card (right away) and sit tight! If you start the process, then decide to join another company, the process must all begin over again. Nothing in the labor certification process may be transferred to another employer. Since it may take someone from India as much as three (3) to four (4) or more years to complete the process, it is wise not to move from employer to employer, if obtaining a Green Card is your goal!

REMEMBER, IF YOU HAVE NOT APPLIED FOR THE ADJUSTMENT OF STATUS BEFORE YOUR 6 YEAR H-1B LIMIT EXPIRES, YOU MUST LEAVE THE U.S. FOR A PERIOD OF ONE (1) YEAR BEFORE RE-ENTERING IN H STATUS AGAIN!

4. What is involved in the Green Card process and how long will it take?
The Green Card process for a "Non-Schedule A" (NSA) alien is a long and tedious process. The first phase being Labor Certification and then once labor certification is approved, the I-140 would be filed. Phase two consists of Adjustment of Status OR Consulate Processing. This process can take 15-24 months or longer depending on the priority date of the primary applicant.

Now that PERM has gone into effect, applicants move through the Labor Certification Process much quicker. However, due to the priority date backlog at CIS, the applicant will do all of their waiting in the Adjustment of Status.

Currently, priority dates are backlogged and Immigrant Visa numbers are not available. CIS will not allow applicants to file the last stage of the green card (AOS or CP), until the priority date becomes current. There is no way to predict how long the wait might be for this. The Visa Bulletin which lists the current priority dates can be found at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html, click current bulletin.

5. What's the difference between a Schedule A occupation and a Non-Schedule A occupation?
For some types of positions, the Department of Labor (DOL) has found that recruitment is unnecessary because there is either a chronic shortage of U.S. workers or the position itself is not the type for which recruitment would be meaningful. Those types of positions are pre-certified. When one of those positions is involved, no labor certification application need be filed with the DOL. Instead the proper (labor certification) forms are filed directly with the USCIS, along with the remainder of the immigrant visa petition. Occupations included in Schedule A are PHYSICAL THERAPISTS, PROFESSIONAL NURSES (RN's), AND ALIENS WITH EXCEPTIONAL ABILITY IN THE SCIENCES OR ARTS. (See Schedule A Occupations)

For most other occupations, the DOL must certify that U.S. workers qualified for the job being offered are unable to fill the position. This means that the employer must first apply to the DOL for its certification that qualified U.S. workers have been recruited for the position and are unavailable.* These occupations are called the "Non-Schedule A Occupations".

*Does not apply to aliens in the first employment-based preference category, or to aliens who have had the job offer requirement waived in the second preference category.

6. What will determine the success or failure of the Labor Certification for "Schedule A" Occupations?
The success or failure of a labor certification will depend upon such variables as desirability of the job, the state of the economy, the number of interested and qualified American applicants or permanent resident aliens who read and respond to the job advertisement and/or the internal postings by applying for the position...and, of course, the skill with which the job requirements and job description are prepared. The immigration specialist job is a delicate one. He/she must describe the job narrowly enough that it fits the alien perfectly but broadly enough that it appears to satisfy the DOL's technical requirements for a "genuine test of the job market," hopefully without attracting any qualified American applicants. This requires time, experience and skill, which explains why the fees for non-"Schedule A" labor certifications are correspondingly higher than for "Schedule A" Occupations.

7. What is a "Priority Date" and what does it mean to be "current"?
For persons in a Non-Schedule A occupation, the Priority Date is the date that the DOL records their receipt of the ETA 750 Application for Alien Labor Certification and deems it ready to begin processing.

For persons in a Schedule A occupation, the Priority Date is the date that USCIS records their receipt of the I-140 Petition for Immigrant Worker for processing.

We like to compare the Priority Date to the number you sometimes have to take when you go into a busy store to order something. You must wait until your number is called before you can proceed.

When your Priority Date becomes "Current", it means that there are visa numbers available for your particular nationality, for your particular situation (i.e. Employment, Third Preference). When your Priority Date is current, you may then proceed to the Adjustment of Status or Consulate Processing phase.

At this writing, for Employment Third Preference (most of the workers we speak of in our information), all nationalities are "current" except China Mainland and India. You may check around the 10th of each month for the new immigrant numbers to be posted on the following site: http://travel.state.gov/visa_bulletin.html

8. When my Green Card process is complete, must I continue to work in the profession in which I entered on H-1B status?
No. We have always recommended, however, that you continue to work for the employer who sponsored your Green Card for at least 6 months or more after the Green Card process is complete. But, during that time, if you choose to work part time doing something else, that's fine. And later, after 6 months or so, if you see an opportunity to do something else that interests you, you are free to do so. It's always good to discuss your plans with the employer who sponsored your Green Card however, as they went to a lot of time and expense obtaining it for you and may expect a certain amount of employment from you.

9. I've been in the U.S. for a while now, working on an H-1B visa. I don't have my Green Card yet and am thinking about starting the process. How long does it take? What's going to happen to me if I don't get it before my 6 year limit is up?
The length of processing depends on your profession. The time frame is anywhere from an estimated 18 months to 2 or 3 years. Schedule A occupations (i.e. Physical Therapists and Registered Nurses) are allowed to by-pass the Labor Certification process and thereby save a year or more in their process.

If your process has not progressed at least to the point where you have submitted the I-485 to begin the Adjustment of Status, by the time your 6 year limit is expired, you must exit the U.S. for a period of one year before re-entering on another H-1B visa. You may, however, proceed to apply for the immigrant visa at a consulate outside the U.S. during this time and then re-enter the U.S. with the immigrant visa after it is granted.

If your 6-year limit is expired after you have submitted the I-485 for Adjustment of Status, but before it is approved, you may remain in the U.S. and work as long as you have obtained an Employment Authorization Document (EAD).

10. What are employment-based preferences and which one will I qualify in?
Congress has designated certain groups to which it gives preference in immigrating to the U.S. Most groups are subject to an overall numerical limitation - at least 120,000 visas per year for employment-based in the first three preferences.

The first three preferences, usually requiring an offer of employment in the U.S., include:

FIRST EMPLOYMENT-BASED PREFERENCE FOR "PRIORITY WORKERS"
1. Managers and executives subject to international transfer to the U.S.
2. Outstanding professors and researchers with universities or private employers that have established research departments.
3. Aliens of "extraordinary ability" in the sciences, arts, education, business, and athletics (no offer of employment required).
The labor certification requirement does not apply to the priority worker preference. Therefore, total processing time for cases in this preference is much shorter than is possible for the other employment-based preferences.

SECOND EMPLOYMENT-BASED PREFERENCE (about 40,000 annual visas plus visas not used in the first preference):
1. Aliens of "exceptional ability" in the sciences, arts, or business.
2. Advanced-degree professionals.
A labor certification is required. A job offer is also required, unless it is waived in the national interest*, in which case, the alien is also not subject to the labor certification.

THIRD EMPLOYMENT-BASED PREFERENCE (about 40,000 annual visas plus visas not used in the first and second preferences):
1. Professional with bachelor's degrees not qualifying in the second preference.
2. Skilled workers (filling positions requiring at least two years of training and experience).
3. Unskilled workers
Labor certification and an offer of employment are required. Only 10,000 visas of the annual allotment may be assigned to unskilled workers, effectively creating a separate subpreference for those workers.

Information taken from Immigration Law Library - IMMIGRATION PROCEDURES HANDBOOK, 1997 Edition, by Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr. and Stephen C. Bell.

*It is suggested that if the alien qualifies for Second Preference where a job offer and labor certification are waived in the national interest, the case should be handled by an ATTORNEY who specializes in that type of filing. At this time, Immspec.com does not process those types of files.

11. My friends tell me about a "fast-track" green card...what is that and how can I get one?
Your friends are likely talking about "Reduction in Recruitment" (RIR). If your occupation does not qualify as a Pre-certified Schedule A Occupation you must go through Alien Employment Labor Certification as the first step in your Green Card process, which can be extremely time-consuming. The Department of Labor (DOL) has now established RIR for positions which tend to have a shortage of U.S. workers available. If your employer routinely runs recruitment ads and makes other good faith efforts to recruit U.S. workers, for positions similar to yours, your labor certification application may qualify for a RIR Request. When RIR is used, the labor certification step is substantially shorter in overall length of time to complete. If your employer has not routinely recruited for your position or similar positions, the recruitment campaign must be launched within the 6 months prior to submitting the labor certification application to the DOL.