A Petition for Alien Worker (Form I-140) will need to be filed by your company, regardless of whether your company needs to go through the PERM process. Those self-petitioning for an immigrant visa are also required to file a Form I-140. The form is used to obtain an immigrant visa and must be submitted with supporting evidence including documentation showing eligibility for the preference category selected, labor certification, and ability to pay the prevailing wage. Since there are annual caps on the number of employment-based immigrant visas that can be issued each fiscal year, some foreign nationals must wait extended periods of time to obtain lawful permanent residence. The “priority date” determines when a foreign national can begin the last step in the employment-based immigration process. If a labor certification was required, the priority date is the date that the labor certification application was filed with U.S. Department of Labor. If a labor certification was not required, the priority date is the date that the Form I-140, Petition for Alien Worker was accepted by USCIS for processing. When a “priority date” becomes “current” (i.e. an immigrant visa is available) depends on the preference category and the foreign national’s country of birth. The U.S. Department of State publishes a Visa Bulletin monthly. The Visa Bulletin indicates immigrant visa availability for the month. If the foreign national’s priority date is current, he/she will be able to begin the final step in the immigration process – adjustment of status or consular processing.
- Adjustment of Status v. Consular Processing:
- Adjustment of status is the process through which eligible foreign nationals who are in the U.S. apply for lawful permanent residence. Not all foreign nationals present in the U.S. are eligible to apply for adjustment of status so it is important to speak to an experienced immigration attorney before applying. To apply for adjustment of status, the foreign national must complete a Form I-485, Application to Register Permanent Residence or Adjust Status, and required supporting evidence.
- Consular Processing is the process through which foreign nationals who are overseas applying for an immigrant visa. Upon entering the United States with an immigrant visa, the foreign national becomes a lawful permanent resident (i.e. green card holder). To apply for an immigrant visa, the foreign national must wait for the Form I-140, Petition for Alien Worker to be approved and an immigrant visa is available per the Visa Bulletin. The foreign national must submit a completed DS-260, Immigrant Visa Application, and supporting evidence. The foreign national will be interviewed at a U.S. Embassy or Consulate and if all goes well, an immigrant visa will be issued.