Employment-based Green Card questions
How long do I need to have an H-1B or an L-1 before my employer can sponsor me for a Green Card?
You do not need one at all! The two processes are completely independent of each other. Most employers insist on an H-1B or L-1 only because the Green Card process can take a very long time, and they don't want to wait that long.
Why did the priority dates for some categories move back by a number of years?
This is related to the immigration quota. You can find more information about it on the Quota System FAQ page.
The priority date for my immigration category is listed as "current". I am just starting the process of filing a Labor Certification. Will the quota affect me?
It is impossible to predict with certainty, but most likely, yes.
The problem lies in the sheer numbers. Let's assume, to keep things simple, that just half of all H-1B workers are going to apply for a Green Card. In the year 2000, the quota was 195,000. Half of them makes approximately 100,000 applicants for a green card. But that's not enough! Many of them are married and have children - and family members take up a slot in the green card quota, too (they don't take up a slot in the H-1B quota). Let's say that on average, there is just one additional family member coming along. So approximately 200,000 people actually need a green card. Alas - the worldwide employment-based quota is only 140,000. 60,000 people "spill over" into the next year. In 2001, the H-1B quota was the same - but 60,000 Green Cards were already used up by people who applied in 2000. So now 120,000 people have to spill into the next year.
In the past, this was not a problem. Dept. of Labor and INS were both so slow that only a few of the 200,000 or so annually people in the queue actually got to the point where they'd get a Green Card. Alas, both agencies made great strides in improving the processing times, releasing a deluge of applications all at once.
This is a simplified example (neglecting the country quotas and the individual employment-based categories). The actual numbers may not be accurate, either, since they are based on guesswork. But the general problem remains.
What are the steps to get a Green Card through employment?
There are fundamentally three steps: Labor Certification, Petition and either Adjustment of Status or Consular Processing.
What is a Labor Certification?
Conceptually, the Labor Certification is proof that the employer needs to hire somebody from outside the USA because the position cannot be filled with an American.
The process by which you get a Labor Certification is known as PERM.
Important points to remember:
- Your employer needs to offer at least the prevailing wage for this occupation. This is to ensure that you didn't get the job simply because you underbid Americans.
- Your employer needs to keep track of any received resumes, and why the applicants were not hired.
- Unusually restrictive job requirements need to be justified. In particular, foreign language skills require a very solid business reason.
- Advertising in a newspaper is a must. Internet-only advertising is not acceptable, although Department of Labor now does recognize the Internet as one allowable venue.
The employer needs to provide proof that he contacted all applicants (using certified mail with return receipt requested). Unless the applicant indicates that he is no longer interested, the employer must also invite the applicant for an interview, and then carefully keep track of the reason why each applicant was denied the job. The list of reasons why an applicant can be denied is relatively short. Generally, the applicant can only be denied because he does not possess a skill that is listed on the Labor Certification application. Of course, certain general conditions can also justify a denial, but these need to be fairly extreme. For instance, a case such as as "applicant showed up two hours late and inebriated for the interview" would probaby be sufficient.
What is an RIR Labor Certification?
RIR stands for Reduction in Recruitment. It is a method of getting a Labor Certification that has been in use until March 2005 and is no longer available.
If your employer already filed an RIR Labor Certification before March 2005, it has been transferred to a Backlog Reduction Center. You can request that it will be converted to a PERM Labor Certification. However, there are some drawbacks that you should discuss with your attorney.
What is the regular process?
This is also occasionally described as "directed recruitment". Like RIR, this method of getting a Labor Certification is no longer available as of March 2005.
What is PERM?
PERM is the current method for filing Labor Certifications, since March 28, 2005. But the general idea is that PERM will be an attestation-based system similar to the H-1B Labor Condition Attestation. That is, the employer will simply sign a statement saying that "I conducted good-faith recruitment efforts without success." The Department of Labor would generally approve these PERM Labor Certifications very quickly, but audit some.
What is the petition?
The petition is the second step in the process of obtaining an employment-based Green Card. It is often also called the I-140, because this is the form number used to file the petition.
Basically, in a petition, the employer informs USCIS "I would like to hire a non-American. I have proof that this person is qualified for the job, and I also have proof that there is no American worker available. Please allow this person to apply for a Green Card." In other words, the employer applies for permission for you to apply for a Green Card.
What is the difference between LC and LCA?
This question was inspired by Veronica.
A better question would be, what do they have in common. The answer is, nearly nothing but the first two letters of the acronym.
The LCA, or Labor Condition Attestation, is used during the H-1B process. In the LCA, the employer simply attests (that is, states) that the employment condition for the foreign worker will be the same as for Americans. In particular, the salary, hours worked, benefits etc. need to be the same, and the foreign worker cannot be hired during a strike or lockout.
The LC, or Labor Certification is used during the Green Card process. In the Labor Certification process, Department of Labor actively gets involved and proves (and then certifies) that there is no American who would work in the given job.
The biggest difference is that the Labor Certification cannot be approved if there is even a single American who has the minimum qualifications. An LCA does not even require testing the labor market.
During my Labor Certification, another applicant showed up who meets all the formal qualifications. But I am the far better qualified candidate. Can I still get the Labor Certification?
No, unless you are a University teacher. In all other professions, the American candidate who is just minimally sufficiently qualified has to be hired over a better-qualified foreign applicant. For this reason, it is important to carefully write the job description.
Universities are allowed to hire the best qualified applicant, for teaching or research positions, though.
What happens to my Green Card application if I switch jobs?
This question is answered on the H-1B page.
This web site is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. I made an attempt to provide somewhat accurate information as of the time of this writing, but the situation may well have changed by the time you read this. I am not a lawyer. I have no legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust. Keep in mind that there are no guarantees in immigration law. Most decisions are discretionary in nature, and even a competent immigration lawyer cannot guarantee success.
If you have further questions, please consider posting them in the newsgroup alt.visa.us, where there are a number of helpful individuals. I discourage emailing me directly. If you still want to email me your question, please send them through the Contact page. Don't expect an immediate answer, and I reserve the right to ignore your mail completely, too!
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