Significant New Benefits For Employment-Based Green Card Applicants
August 2, 2002

For qualifying applicants in the U.S. seeking U.S. lawful permanent residence (“green card”) by way of a job offer, the process has just gotten quicker. Essentially, what used to be a 3 step process, has recently been reduced to a 2 step process – where at least 3 to 6 months of processing time can be cut out, and the issuance of an Employment Authorization Document can be facilitated on a more efficient track. In a nutshell, applicants now have the option of commencing Stages 2 & 3, described below, simultaneously.

Seeking U.S. Permanent Residence by way of a Job Offer

For most applicants already living in the U.S. and who are seeking to adjust their status to U.S. permanent residence (without departing the U.S.) by way of a job offer, the basic requirements steps HAVE BEEN as follows:

Threshold Requirement:

The applicant must be in legal immigration status, OR is “grandfathered in” under Section 245(i), with their unlawful status being excused with payment of a “penalty” at the end of the process – [generally 245(i) eligibility is established where some sort of employment based or family based immigrant filing was commenced prior to April 30, 2001].

Stage 1:

An interested employer commences a filing to confer immigrant status onto the applicant. Usually this involves the filing of an Alien Labor Certification application with the state’s employment agency, (in Illinois, the Illinois Department of Employment Security), with the employer ultimately having the burden to place advertisements in a local newspaper or periodical and document that U.S. workers are unavailable to fill the position at issue. The U.S. Department of Labor will ultimately review all of the paperwork and if it determines that the employer has adequately documented a labor market shortage, it will issue an approved labor certification. For this stage, processing times range from 1 to 2 years.

Importantly, registered nurses and physical therapists, among other professionals, are exempt from Stage 1 since the U.S. Department of Labor considers both to be shortage professions and accordingly, applicants can proceed immediately with the 2nd stage of the process.

Stage 2:

The parties usually proceed with the filing of an I-140, immigrant worker petition with one of 4 INS Service Centers (for Illinois based applicants, the Nebraska Service Center has jurisdiction). At this stage, along with other requirements, the parties must provide evidence that the employer has the financial ability to pay the wage offered, and the employee possesses the necessary experience to carry out the functions of the position at issue. Processing time ranges from 2 to 6 months.

Stage 3:

With the approved I-140 petition, the applicant (along with qualifying spouse and children in the U.S.) proceed to the final, I-485 adjustment of status stage where applications for employment authorization and sometimes, an advance parole travel document can be submitted. As is the case in Stage 2, this filing is submitted with an INS Service Center, such as INS Nebraska. Within 90 days of submission, applicants will be issued employment authorization documents, and for certain eligible applicants, advance parole travel documents. A decision on the I-485 permanent residence application usually takes 1 to 2 years, depending on whether the filing is transferred to a local INS office, such as INS Chicago, for interview. But, as long as the I-485 permanent residence application remains pending, eligibility for employment authorization, and for some, advance parole, continues.

THE CHANGE:

NOW, under an INS regulation published on July 31, 2002, qualifying applicants have the option of commencing stages 2 and 3 simultaneously – with the opportunity to have the I-140 petitions and I-485 applications filed concurrently. That means, applicants no longer need to wait for Stage 2 to be completed in order to proceed with the adjustment of status stage (stage 3), where the employment authorization document ball gets rolling. Instead, efforts at obtaining the benefits normally associated with the stage 3 can be commenced immediately after the U.S. Department of Labor approves the labor certification filing.

What that also means is that those who do not require labor certification (e.g. registered nurses and physical therapists), and otherwise qualify for I-140 and I-485 approval, can proceed immediately with both stages. So conceivably, an eligible R.N. or P.T. staying in the U.S. may be able to gain their employment authorization document in as little as 90 days from the initiation of processing. For R.N.’s that generally means, needing only the CGFNS certificate to start the process, and only needing the ICHP Visa Screen by the time the INS requests the document at the very end of the process.

Those who think they may benefit in one way or another from this new provision are advised to contact an experienced and competent attorney, whose practice concentrates in the immigration law field.