Employment based US immigration the I-140 Petition and adjustment of status

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Dev B. Viswanath, Esq. (Photo courtesy of Dev B. Viswanath, Esq.)

Form I-140, Immigration Petition for Alien Worker, is a form used by U.S. employers who would like to sponsor foreign nationals to work in the U.S. permanently. Before filing an I-140 most employers are required to file a labor certification. Labor certifications verify that there are not enough workers who are able, willing, qualified, and available at the time and place where the foreign national is to be employed and that employment of the foreign national will not negatively affect the wages and working conditions of similarly employed U.S. workers.

Form I-485, Application to Register Permanent Residence or Adjust Status, is used when a non-immigrant would like to apply for lawful permanent resident status while they are in the U.S. An I-485 can be concurrently filed with an I-140 when a visa number is immediately available and both forms are filed at the same time. When deciding on concurrent filings, the decision on eligibility for the immigrant visa petition is made first.

The Labor Certification Process is between the Petitioning Employer and the US Department of Labor, certifying that there are no US workers able, willing, and minimally qualified as per requirements, to take perform a job. But, the I-140 petition is between the Petitioning Employer and the US Citizenship and Immigration Services and is a petition to declare that as certified by the Labor Certification, there are no US workers for the particular job, and that the employer has found a foreign national which is ready, willing and qualified to handle the job, and that the employer has the ability to pay the prevailing wage. The priority date which determines when visa numbers are available and current, will be finalized upon approval of the I-140 petition and are usual pegged to the first date of filing the labor certification.

When visa numbers are available, filing concurrently can speed up the process of a nonimmigrant receiving a green card. Generally, employment based permanent residence will not require an in person interview. In the last administration, there was an order that all Employment cases would require an interview unless waived. But now, the Biden administration has reverted back to best practices and usually only applicants with a criminal history or unlawful presence are called in for an in-person interview, or if there is some other issue to be resolved.

After the I-140 is approved, the Service Center will send the applicant’s adjustment package to USCIS’s National Benefits Center (NBC) for final review and adjudication of the green card. However prior to that, any ancillary work and travel applications will be adjudicated.

The Biden administration has made strides in speeding up the adjudication process than before, but there are still delays that we must bare with. Applicants are encouraged to always update their application if there are any material changes such as transfer of employment, change of employer, or change of job titles or duties. Applicants should also continue to extend their underlying nonimmigrant status until the green card is approved.

For more information on Employment Based Immigration, please contact an experienced Immigration Professional.

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