Employment-Based Immigration Process
Becoming a lawful permanent resident based on employment requires a number of steps. Below is an explanation of the application process for three categories of employment based immigrants.
EB-1 Priority Workers: generally the employer (or employee if they can self-petition) only needs to file a Form I-140 immigrant petition for alien worker with USCIS. USCIS will verify that the employee meets all eligibility requirements. If USCIS approves the petition, the employee may apply at a U.S. consulate for an immigrant visa or, in certain situations, apply to USCIS to adjust status to that of a permanent resident without departing the United States once the visa bulletin reflects that a visa is available.
EB-2 Professionals with advanced degrees or persons with exceptional ability & EB-3 Other, Skilled or Professional workers: Applicants in these two categories require a three step process. First, an employer must obtain a labor certification from the U.S. Department of Labor (DOL) in order to show that there are no qualified, willing and able U.S. workers available to fill the position. Second, the employer files a Form I-140 with USCIS. Third, after Form I-140 is approved and the visa bulletin reflects that a visa is available, the employee will apply to a U.S. consulate for an immigrant visa or to USCIS for adjustment of status.
Why do I have to wait so long for my employment based visa?
With a few exceptions the number of immigrants the United States may accept each year is limited by law (see section 201-203 of the INA). For many of the categories of immigrants, the number of people applying exceeds the number of visas allocated.
In particular, the demand for employment-based immigration is very high. Last year alone USCIS received almost 104,000 petitions for immigrant workers and another 100,000 applications for permanent residence for those workers and their families. This is on top of the petitions and applications which remain pending from prior years. Available visas for employment-based immigration is limited to only 140,000 per year and that limit is further divided into the various preference categories (e.g., EB-1, EB-2, etc.) and into a set percentage for each country. The U.S. Department of State, which actually issues the visas, publishes a visa bulletin on a monthly basis, showing the priority dates (a priority date is the date that a Labor Certification is filed with the state level Department of Labor office or, if a labor certificate is not required, the date that the approved I-140 is filed). The latest visa bulletin (March 2009) shows that an EB-3 applicant from India would not be “at the front of the line” for an immigrant visa number unless he or she has a priority date of October 2001. The wait for other employment-based visas currently are ranging between 4 and 7 years. That means people being issued an immigrant visa began the process 4 to 7 years ago. Changes in demand can affect wait time, and thus the wait time can change while you are waiting in line.
8 CFR 245.1 requires that a visa number be available on the date that an applicant files for adjustment of status. USCIS refers to the visa bulletin to determine whether a visa was available on the date of filing. On June 12, 2007, the State Department issued the July 2007 visa bulletin indicating that visas were currently available for all employment based categories, prompting the filing of thousands of adjustment applications for which immigrant visas became unavailable due to the high filing volumes and also due to USCIS’ backlog reduction efforts for previously filed adjustment applications. As a result, applicants were eligible to file employment based adjustment applications during a period of time in July and August of 2007 only to be advised shortly thereafter that the visa availability dates had regressed and a visa was no longer available. This situation created an instant backlog of adjustment applications at USCIS that, while properly filed, cannot be approved until visa numbers were again available. While delays in processing of these adjustment applications are disappointing to these applicants, the regulations do allow these individuals to receive employment authorization and remain in the United States until their adjustment of status application is adjudicated.
Typically, USCIS adjudicates applications on a first in first out basis, however, as explained above, since USCIS cannot approve an adjustment application and grant permanent residence until an individual visa number is available, the first in first out principle does not apply to these “visa regressed” cases. USCIS is processing adjustment applications based on projections of when a visa number will become available.
In most cases, the job offer in the Form I-140 must remain valid and available to the alien beneficiary until s/he obtains permanent resident status. In some limited circumstances, the law allows adjustment applicants to change employers without interrupting their eligibility for adjustment of status if the Form I-140 has been approved and the adjustment application has been pending for at least 180 days. USCIS recognizes that some workers may want to take advantage of this provision in the law and has increased its emphasis on processing the underlying employer petitions independent of the availability of a visa for the finalization of the adjustment of status application. Since the beginning of this fiscal year (October 2008), USCIS has adjudicated over 75,000 employer petitions, reducing the pending caseload of petitions to under 55,000.USCIS’ goal is to have adjudicated all the older employer petitions, and to be processing newer petitions within 4 months, by the end of September 2009. USCIS will regularly report its progress toward this goal.
