Seeking Security in a Time of American Turmoil: Obtaining A Green Through Employment

Photo by Filip Mroz (Unsplash.com) [ID: Digital photograph of woman kayaking.]

We continue with our series of newsletters on the search for immigration security at a time of American turmoil. While everyone has heard of green cards being issued to Oscar-winning actors, or scientists creating revolutionary medical treatments, or executives transferred within huge multinational corporate groups, there is another path to an employment based green card designed for the rest of us: people who show up at full-time jobs each day, doing good work, earning the support of employers.

If you are in this category, this Blog Post is for you. We want to set out for you a simple recipe for a green card strategy that you can discuss with your employer. The support of your employer is an essential element of this recipe. We will assume the following:

• You are in the US in a valid work visa status.

• You have a full-time job that reasonably requires a college degree, and you have that degree.

• You have an employer that will sponsor you through the process.

• Your compensation meets or exceeds the prevailing wage for the job.

• You are prepared to stay in place at your job, with some minor promotions, through a green card process that can take, from beginning to end, 3-4 years.

This Green Card “recipe” has two stages:

• Stage 1: PERM Labor Certification (a structured test of the labor market followed by an electronic filing with the US Dept. of Labor)

• Stage 2:  Green Card Petition to US Immigration.

Stage 1-- The PERM Labor Certification Phase

• The Process: The employer (or an attorney specialized in this area) will run a recruitment campaign to “test the labor market” to see if there exists a “qualified American worker” who wants your current “job.”

  • The recruitment campaign involves placing ads in 5 different media venues and will also include a posting of a more detailed “in house notice” of the position in the employer’s principal place of business.

  • Great care must be exercised in the proper characterization and description of your “job” in the recruitment ads and in-house notice, which specify the applicable experience and education requirements for the position, subject to a host of requirements and limitations, which need to be met precisely.  The smooth running of the entire green card process depends entirely on a cogent strategy executed from the very first step.

  • A request is also filed with the US Department of Labor for a determination of the “prevailing wage” for your job. This is the minimum wage that the employer must pay a qualified applicant. It is also the minimum wage that the employer must pay to you when your green card is issued. (It is comparable to the wage requirements applicable in the context of an H-1B visa.)

• The PERM Filing: When the recruitment campaign is done, if no qualified American applied, an online application (called a PERM) can be filed with the Dept. of Labor. Following that filing, if all goes well, about 15 months after the filing, the US Department of Labor will issue a PERM Labor Certification that allows you and your employer to move on to Stage 2 and apply for your Green Card.

• Note: Dept. of Labor regulations require the employer to pay for all the costs related to this Stage. (No such restriction applies to Stage 2.)

Stage 2-- The Green Card Phase

The I-140 Filing:

• Once the PERM Labor Certification is issued, the parties have 180 days to file an I-140 petition.

• The I-140 petition needs to establish that, as of the date that you were hired by your sponsoring employer, you met the requirements for the position that the in house notice, referred to above, stated. This includes:

  • A detailed support letter, signed by your employer, which explains the employer’s business operations, a job description for your position, and a summary of your education and employment qualifications is also included. Evidence of your education credentials with copies of your college diplomas and evidence of your relevant employment experience with letters from your relevant prior employers.

  • Frequently, but not always, the filing of the I-140 includes an Adjustment of Status Application, and interim benefits applications as well. These are delayed in some cases, depending on where you were born and a complicated waiting matrix described in the State Department’s Visa Bulletin,  issued each month. 

Adjustment of Status:

• Adjustment of Status is a formal request to have the green card petition processed (and the green card approved and issued) completely within the US, without any involvement of any US Embassy or Consulate.

• Depending on your underlying non-immigrant visa status, you may not be permitted to leave the US while your Green Card and Adjustment of Status filings are being adjudicated, until you are issued travel authorization (or “Advance Parole”) by US Immigration.

• During the Adjustment of Status stage, US Immigration will perform the following tasks:

  • Review your medical exam form, which was included in the Adjustment of Status filing.

  • Coordinate an FBI background check on you to determine that you do not have a criminal record.

  • Issue interim benefits cards (employment authorization and travel authorization).

  • Schedule a green card interview, in some cases.

The Take-Aways:

• While this green card path is accessible, it must be approached with great care and executed with the precision and timing of a surgical operation.

• This journey should only be pursued with a highly experienced attorney.

• Because the green card process is costly and lengthy, both you and your employer should be committed to the process for the long haul.

• At the end of the process, if all goes well, you will have a green card that is valid for 10 years. You can renew it, or become a citizen, depending on a variety of factors.

• Once you have held the green card for 5 years, you may be eligible to apply for US citizenship.

Please let us know if you are interested in pursuing this route to a green card.

Our best to you all, now and in the future.

Dyer Harris LLP