One method of obtaining permanent residency in the U.S. is through the Employment-Based Permanent Residence Process (“EBPRP”) or in other words: through an employer. Once you have an employer that is interested in your skills and in sponsoring you, then the EBPRP may begin. Obtaining your permanent residence through an employer usually takes three (3) phases: Labor certification; Immigrant visa petition; and application for permanent residence.
The first is handled through the U.S. Department of Labor (“DOL”) and the latter two (2) are processed through the U.S. Citizenship and Immigration Services (“USCIS”), although permanent residency may also be applied for at a U.S. consulate. We will discuss each phase in detail in this article.
During this phase, the employer is required to conduct a labor market test to prove that there are no minimally qualified, willing, able U.S. workers to perform the position on a long-term, “permanent”. The recruitment protocol must follow the guidelines set forth in 20 C.F.R. § 656.17(e). After conducting a successful recruitment the employer may then file an online ETA 9089 Application for Permanent Employment Certification (“Labor Certification Application”) with DOL. DOL may approve the application, audit the application or deny it. Please note that audits may happen anytime within the five (5) years following the filing of the Labor Certification Application. This means the employer must keep the originals and copies of all recruitment steps for five (5) years beginning on the date the Labor Certification Application was filed.
This phase, from filing the first step (the Prevailing Wage Determination) to the last step (filing the Labor Certification Application), typically takes between four (4) months to six (6) months. Approval could take up to 6 months depending on an audit request. Only cases falling under the EB-3 category and the EB-2 category (unless a National Interest Waiver is received) require a Labor Certification.
Immigrant Visa Petition:
The second phase is the employer’s petition filed with the USCIS, with evidence that the sponsored person meets the minimum requirements for the sponsored position, and evidence that the employer has the ability to pay the prevailing wage.
Once the Immigrant Visa Petition is filed, this phase typically takes about five (5) to six (6) months for USCIS to process unless premium processing is used, in which case the processing time is cut to fifteen (15) days. The government can request additional evidence before making a decision on the petition, which may prolong this phase.
Application for Permanent Residence:
Once the Immigrant Visa Petition has been approved and the alien employee’s Priority Date (the date the Labor Certification Application was filed) is current, he or she may apply for permanent resident status. To check whether an alien employee’s priority date is current, please contact our offices so we can walk you through how to perform a simple check on-line.
The actual application for permanent resident status consists of the alien employee’s application on Form I-485, submitted with personal information and documentation, along with the results of a physical exam.
The Priority Date is also relevant after filing for permanent residence. Once USCIS completes processing of the application, it must again check the Priority Date chart. In some cases, the applicant’s place in line may permit an application, but during the processing of the case, the Priority Date may retrogress and move backwards.
In those instances, the alien employee and USCIS must wait until the dates advance adequately before approving the application and issuing permanent resident status. Once the alien employee is granted permanent residence status, he or she may live and work in the U.S.
This last phase may take years to finalize as it depends on the Priority Date and how quickly USCIS is processing applications.