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Lawful Permanent Residence Classification
Definition
What is an employment-based preference category and under which preference category does an individual qualify?
What is the Labor Certification process and how long does it take?
What are Priority Dates and backlogs?
An employee's six years of H-1B eligibility is
What options exist for obtaining Permanent Residence classification based on a family relationship?
What is the Diversity Lottery?
Can an individual include her spouse and dependent children in her application for Permanent Residence?
Lawful Permanent Residence Classification
Definition
Lawful Permanent Residence classification allows a foreign national to stay in the United States and be employed indefinitely, as long as he or she does not abandon the Lawful Permanent Resident classification.
What is an employment-based preference category and under which preference category does an individual qualify?
Congress has designated those groups to which it gives preference in immigrating to the United States. Employment-based applications are broken down into 5 preference categories. Each preference category is subject to an overall numerical limitation.
The first employment-based preference category, which does not require a labor certification application, is set aside for priority workers eligible for one of the following categories:
- multinational managers and executives transferred to the US from a foreign affiliate, subsidiary, branch or parent of the US office
- outstanding researchers and professors
- individuals possessing extraordinary ability in the arts, sciences, education, business, and athletics
The second employment-based preference category, which usually requires a labor certification application, is set aside for the following:
- individuals possessing exceptional ability in the sciences, arts and business who can demonstrate that their expertise and work is in an area benefiting the national interest (this does not require a labor certification application)
- professionals possessing an advanced degree and where the position requires at least an advanced degree (advanced degree is defined as any U.S. academic or professional degree above a bachelor's degree level or a bachelor's degree and at least five years of progressive experience)
The third employment-based preference category, which requires a labor certification application, is set aside for the following:
- professionals with a bachelor's degree (actual US degree or foreign degree equivalent)
- skilled workers (filling positions requiring at least 2 years of training and experience)
- unskilled workers (filling positions that require less than 2 years of experience)
The drafting of the labor certification will impact which preference category can be requested on the immigrant petition (I-140).
What is the Labor Certification process and how long does it take?
The labor certification process will vary in length, depending on which method is appropriate for the case and where the individual works (which state). In addition, government processing times are extremely inconsistent and subject to change. Most employees will go through the LABOR CERTIFICATION PROCESS, consisting of 3 major stages:
Stage 1: Labor Certification
Stage 2: I - 140 (Immigrant Visa Petition)
Stage 3: I - 485 (Adjustment of Status)
What are Priority Dates and backlogs?
Because of the large number of people who wish to become Permanent Residents, a system has been devised to regulate the distribution of available immigrant visa numbers pursuant to a quota system. An individual's priority date is established in one of two ways. If the individual is required to go through the labor certification process, the priority date is the date the labor certification was filed with the state Department of Labor. If the individual was exempt from the labor certification process, the priority date is the date the I-140 Immigrant Visa petition was filed with the INS.
If the individual's priority date is "current," and the immigrant visa petition has been approved, an immigrant visa is available. As such, the individual may be able to file his permanent residence application (I-485) with the INS. Foreign nationals from Mexico, India, China, and the Philippines may experience delays before their priority date is current due to the high number of immigrant visa applications by nationals of those countries.
An employee's six years of H-1B eligibility is "maxing out" and the I-140 has been approved, but she is not able to file the I-485, Adjustment of Status application, due to priority date backlogs. Can she remain in the U.S. until she files the I-485?
A recently enacted law allows foreign nationals in H-1B classification to benefit from an extension of the H-1B classification under certain conditions. The INS must have approved an Immigrant Visa Petition on behalf of the individual based on the employment-based first, second or third preference classification. In addition, the individual must be a national of one of the oversubscribed countries and is waiting for his priority date to become current to file the I-485 application.
F.What options exist for obtaining Permanent Residence classification based on a family relationship?
The U.S. government has decreed that certain close-ties to U.S. Citizens or Lawful Permanent Residents may make a foreign national eligible for immigration. As such, the following family-based groups may be eligible for permanent residence:
- Immediate relatives of U.S. Citizens. Immediate relative is defined as a spouse, unmarried child under the age of 21 years, or parent of an U.S. Citizen;
- Other close relatives of U.S. Citizens. Other close relative is defined as unmarried sons and daughters (over the age of 21 years) of U.S. Citizens;
- Spouses and Children of Lawful Permanent Residents;
- Married sons and daughters (over the age of 21 years) of U.S. Citizens;
- Spouses and unmarried sons and daughters of U.S. Permanent Residents; and
- Brothers and sisters of U.S. Citizens.
What is the Diversity Lottery?
Each year, the U.S. Government makes 55,000 immigrant visas available to foreign nationals of countries with few numbers of immigrants in the U.S. The U.S. Department of State administers this program.
Can an individual include her spouse and dependent children in her application for Permanent Residence?
Yes, spouse and children, under the age of 21, can be included with the application.
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