Employment Based Permanent Residency
There are three stages to the permanent residency process. The first stage is the Labor Certification which tests the availability of American workers and determines the company's ongoing efforts to recruit Americans for the position. Cases are filed under the PERM process which requires that the employer undergoes two advertisements within a six month period of time, obtains a wage determination for the position from the State Workforce Agency, lists the position on the state job bank and undergoes several additional recruitment activities. Due to the mandatory response periods, these preliminary steps take approximately 3 months to complete. The Labor Certification is filed with the Department of Labor. The date on which an individual’s case is filed becomes that person’s "Priority Date".
Stage Two of the process is the Preference Petition, also referred to as the I-140. The Preference Petition establishes that the position being offered qualifies for permanent residency and that the individual has the minimum qualifications for the position as established in the Labor Certification. The Preference Petition is filed with CIS.
The final stage of processing is the Adjustment of Status (AOS) in which the individual goes from a temporary, non-immigrant status to a permanent, immigrant status - this is also referred to as the I-485. The final stage of the process is filed with CIS. Once an immigrant visa becomes available (in other words, the beneficiary’s priority date has been reached), one can file the request to Adjust Status. For individuals whose priority date is “current” at the time of the filing of the I-140, the I-485 can be filed concurrent with the I-140.
The filing of the I-485 allows the primary beneficiary and his/her adult dependents to file an EAD card. The EAD card authorizes employment for the dependents and/or allows the primary beneficiary to obtain employment with someone other than the sponsoring employer. Travel privileges outside of the U.S. are enabled through the filing of an Advance Parole, travel document.
1. Labor Certification - the Dept. of Labor’s processing takes 45-120 days after the conclusion of the recruitment phase.
2. Preference Petition (I-140) – processing times vary according to the CIS backlogs but generally anywhere from 6-10 months. Premium Processing takes 15 business days.
3. Adjustment of Status* (I-485) - It is not possible at this time to predict how long it will take CIS to adjudicate I-485 cases (or for priority dates to become current in some employment categories).
Portability of the process – one is eligible to port the processing of his/her case to another employer with an approved I-140 and an I-485 pending in excess of 180 days.
H-1B Extension beyond the 6th year - An individual is eligible to extend his/her H-1B if a labor certification has been filed and is pending in excess of one year OR if an I-140 has been approved and there is no immediately available immigrant visa.