Have you figured it out?
Employment-based Immigrant Visa Petition & Receipt of Permanent Residence
October 14, 2020 at 6:00 AM
by Erin K. Williams, Esq.
Person holding a solved rubik's cube with the words "figure it out".

In the employment context, the Form I-140, Immigrant Petition for Alien Worker is the request by an employer for the permanent residence of its worker. This step involves the approval of the immigrant visa. There are essentially three categories available for an employer to sponsor an employee. 

  • First preference which includes foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics (this category is reserved for the highest-level candidates such as Nobel Prize winners and/or Olympic athletes and does not require an employer sponsor); Outstanding professors and researchers; or Multinational managers and executives. 
  • Second preference which consists of members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers, although there is no employer sponsor required for the national interest waiver). 
  • Third preference includes skilled workers, professionals, or other workers.

Each the second and third preference categories require an employer sponsor and a Labor Certification/PERM (except a national interest waiver). In the Labor Certification / PERM context, this is the second step to obtaining permanent residence for an employee. *Visit us again next week for information on the PERM/Labor Certification Process!*

Regardless of if the Immigrant Visa Petition is the first or second step in the process, the main requirements are the same. An employer must establish that it has a full time, permanent position open which it is offering to a foreign national employee. It must also have the ability to pay the offered wage from the priority date through the time the employee begins work. The priority date is established either the date of filing the PERM application or the date of filing a Labor-exempt Immigrant Visa Petition with the U.S. Citizenship and Immigration Services (USCIS). 

Once a petition is properly filed, the USCIS will review the underlying Labor Certification / PERM, as applicable, to ensure that the employee meets all requirements. Then it will review the Immigrant Visa Petition to ensure that the job offer remains and that the employer has the ability to pay the offered salary. If these requirements are met, the petition will be approved. 

The final step is the issuance of the immigrant visa to the foreign national. This step surrounds the eligibility and admissibility of the foreign national as a permanent resident to the United States. Depending on the visa category priority date, the foreign national may be able to submit their request to Adjust Status concurrently with their Immigrant Visa Petition. If the Adjustment of Status request was concurrently filed, it will continue to process until it is scheduled for an interview at the local USCIS office, if required, for final adjudication. If the foreign national has not submitted an Adjustment of Status application and the priority date is current, they may do so during the pending I-140 or upon approval of the I-140.

Alternatively, if the foreign national is abroad, the approval of the I-140 is forwarded to the National Visa Center for the continued processing of the Immigrant Visa through the U.S. consulate abroad.

An Adjustment of Status application or Consular processing will be reviewed for each individual’s personal circumstances including immigration history, criminal background, medical/public health issues, and national security threat. Assuming there are no eligibility or inadmissibility issues, the request will be approved. An Adjustment of Status Applicant will have their nonimmigrant status adjusted to that of Lawful Permanent Resident while they are present in the U.S.  A Consular applicant will be issued an Immigrant Visa in their passport to use to request admission as a Lawful Permanent Residence. Upon entry to the U.S., the applicant will receive their Permanent Residence and will be immediately able to work and remain in the U.S. permanently.

Upon issuance of Permanent Residence, the employee may begin working in the sponsored position and the employer must pay the offered wage and meet all certifications and obligations that it has made to the government in the process to obtain Permanent Residence.

Join us in coming weeks for more details on each of the Employment-based categories and the processing. 

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