Immigrant Visa "Green Card" (Employment Based)

8CHART: Categories of Immigrant Visa "Green Card"

8Categories of Immigrant Visa "Green Card"

8EB-1 Categories
8EB-2 Categories
8EB-3 Categories

8EB-5 Categories ("Investor")

8I-140 Immigrant Visa Preference Application
(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

8"Ability to Pay" the Offered Wage
8Concurrent Filing Rule

8I-485 Adjustment of Status (within the U.S.) VS. Consular Processing (overseas)&8Chart
(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

8I-485 Adjustment of Status VS Consular Processing &8Chart
8Employment-Based Immigrant Visa "Portability" &8Chart

For employment-based immigrant visa "green card" applications, there are generally three steps:

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).  Note:  Currently, "Concurrent Filing" of the I-140 & I-485 is allowed (not Consular Processing).

Depending on the 5 preference categories, EB-1 through EB-5, it is possible to "skip" the time-consuming Step (1).

ETA-750 "Labor Certification Application" Required?

.......	Category	Step (1) ETA-750 LCA "Labor Certification Application"
EB-1A	Extraordinary Ability	Not required.
EB-1B	Outstanding Professors and Researchers	Not required.
EB-1C	Multinational Executives and Managers	Not required.
.......	.......	.......
EB-2A	Advanced Degree Professionals	Required, unless NIW (national interest waiver).
EB-2B	Exceptional Ability	Required, unless NIW  (national interest waiver).
.......	.......	.......
EB-3A	Professionals	Required.
EB-3B	Skilled Workers	Required.
EB-3C	Other/Lesser Skilled Workers	Required.
.......	.......	.......
Other:	Schedule A:  Group 1  (medical personnel, such as physical therapists and nurses)	Not required ("pre-certified").
Other:	Schedule A:  Group 2 ("exceptional ability" in science or arts (except for performing arts), and university teachers.)	Not required ("pre-certified").
Other:	Schedule B: Assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.	Required.
Other:	Special Handling Cases:  College/university teachers, performing artists, professional athletes, etc.	Required (Special Handling LCA).

 

Depending on the 5 preference categories, EB-1 through EB-5, it is possible to "self-petition" (no employer/petitioner "job offer" required).

ETA-750 "Labor Certification Application" AND "Self-Petition"?

.......	Category	Step (1) ETA-750 (LCA)  "Labor Certification Application"	Employer/Petitioner ("job offer")
EB-1A	Extraordinary Ability	Not required.	Not required.
EB-1B	Outstanding Professors and Researchers	Not required.	Required.
EB-1C	Multinational Executives and Managers	Not required.	Required.
.......	.......	.......	.......
EB-2A	Advanced Degree Professionals	Required, unless NIW (national interest waiver).	Required, unless NIW (national interest waiver).
EB-2B	Exceptional Ability	Required, unless NIW (national interest waiver).	Required, unless NIW (national interest waiver).
.......	.......	.......	.......
EB-3A	Professionals	Required.	Required.
EB-3B	Skilled Workers	Required.	Required.
EB-3C	Other/Lesser Skilled Workers	Required.	Required.
.......	.......	.......	.......
Other:	Schedule A:  Group 1  (medical personnel, such as physical therapists and nurses)	Not required  ("pre-certified").	Required.
Other:	Schedule A:  Group 2 ("exceptional ability" in science or arts (except for performing arts), and university teachers.)	Not required  ("pre-certified").	Required.
Other:	Schedule B: Assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.	Required.	Required.
Other:	Special Handling Cases:  College/university teachers, performing artists, professional athletes, etc.	Required (Special Handling LCA).	Required.
.......	.......	.......	Even if Employer/Petitioner ("job offer") required,  at Step (3), examine  Employment Based Immigrant Visa "Portability" Rule

Based on the 5 preference categories, EB-1 through EB-5, priority dates (delays after Step (2) I-140) may occur.

Depending on the preference category, delays may be encountered due to the priority dates.  The amount of immigrant visas that can be issued during the year (i.e., 10/1 to 9/31) is not unlimited.  Visa numbers are issued and ranked according to the preference category, and unless the "priority date" is current, Step (3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas) cannot begin.

Extraordinary Ability (EB-1-A)
For individuals who have "extraordinary ability in the science, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim."  The intended employee does not need to have a degree -- but sufficient documents to establish his/her merit and ability is necessary (i.e., published materials by or about individual, letters of support, affiliations with organizations, etc.).

Step (1) ETA-750 LCA required?  No. Employer/Petitioner ("job offer") required?  No.

Outstanding Professors and Researchers (EB-1-B)
For Master's+ degree holders who have 3 years experience in teaching/research in area (experience gained while working on advanced degree may be acceptable), and is seeking tenure/tenure track position at institution to conduct research, or comparable "full-time/permanent" position at private company (if it employs 3 full-time researchers).

Outstanding means recognized internationally -- demonstrated by at least two of the following:

- receipt of major prizes/awards for achievement
- membership in association requiring outstanding achievement
- published material in profession publications written by, or about the individual
- evidence of participation as a judge for others
- evidence of original scientific research
- authorship of scholarly books/articles

Multinational Executives and Managers (EB-1-C)
For individuals who have been employed 1 year (within 3 years) by a "firm, corporation, legal entity, affiliate, or subsidiary" of the employer in the United States.  (Note:  1 of 3 year requirement can be met, even if individual has been in the U.S. for more than 3 years, as long as he/she met the requirement prior to entering the United States).
"Managerial" duties include:  manages the company/department/subdivision, supervises and controls work of other supervisory, professional employs, has authorization to hire/fire, and exercises discretion.
"Executive" duties include:  directs management/department, establishes goals/objectives, exercises discretion, receives general supervision from only board of directors, stockholders, etc.

Step (1) ETA-750 LCA required?  No. Employer/Petitioner ("job offer") required?  Yes. Note:  Evidence of relationship of the overseas and U.S. company, individual's overseas employment (and duties), duties of the individual, as well as U.S. employer's business information for 1 year required.

Advanced Degree Professionals (EB-2-A)
Professionals who have advanced degrees (Master's degree or higher, or equivalent)  for a position that requires an advanced degree.
Bachelor's degree + 5 years of progressive experience can be considered to be equivalent of a Master's degree.  If Ph.D. is required for a position, cannot use experience.

Step (1) ETA-750 LCA required?  Yes. Employer/Petitioner ("job offer") required?  Yes, unless:  NIW - or - Schedule A, Group 2 "exceptional ability" (note that this "exceptional ability" may be more difficult than the EB-2-B "exceptional ability -- see below).

Exceptional Ability Individuals (EB-2-B)
Individuals who have "exceptional ability" in the sciences, arts or business.

Exceptional ability is demonstrated by at least three of the following:

- recognition for achievements and significant contributions
- membership in professional association
- degree relating to area
- license to practice profession
- letter from current/former employer showing 10 years of experience
- high salary/remuneration

NIW - National Interest Waiver
Individuals with qualifying education and/or work experience who can prospectively benefit the United States may be able to waive the requirements of the "offer of employment" and "labor certification application."  There are no simple guidelines governing what can be considered to be in the national interest; however, the following benefits have been considered:

- improving the U.S. economy
- improving wages and working conditions for U.S. workers
- improving education and programs for U.S. children and underqualified workers
- improving health care
- making more affordable housing
- improving the U.S. environment and making more productive use of natural resources
- pursuant to an interested government agency request

Note: Since 1998, the NIW has become extremely limited and difficult.

Foreign Medical Graduates
Foreign Medical Graduates cannot file for immigrant "green card" status if to perform services as a member of the medical profession, unless, he/she has the ECFMG certificate (Educational Commission on Foreign Medical Graduates), by passing I and II of the National Board of Medical Examiners Examination (or equivalent).  This is no steps 1-2 of the USMLE (United States Medical LIcensing Examination), or is a "doctor of national/international renown," or a graduate of accredited medical school in U.S. (includes Puerto Rico and Canada), or not entering to perform medical services.

Labor certification application (LCA) and offer of employment (employer) required, unless, the following:

1.  working full-time in a health shortage area or for the VA, and
2.  federal agency or state public health dept. has determined work is in public interest, and
3.  physician must work full-time for an aggregate of 5 years (not including time on J-1)

- petitions can be filed prior to the 5th year date (waivers approved prior to Nov. 12, 1999 are unaffected; waiver filed before Nov. 1, 1998 are approved if physician has worked full-time for 3 years in shortage area).

(a)  Professionals:  To qualify as a professional, you must possess a US bachelor's degree or foreign degree equivalent in the field and must establish that such a degree is the normal requirement for entry into the profession.  Experience cannot substitute for a degree.
(b)  Skilled Workers:  This subcategory is reserved for those in positions that require a minimum of 2 years of training or experience.
(c)  Unskilled Workers:  This subcategory is reserved for those in positions that require less than 2 years of training or experience.

In general, the Step (1) ETA-750 LCA is the most time consuming, and requires an employer/petitioner ("job offer"), and that there are no qualified US workers available to fill the position (demonstrated by a "recruitment campaign" job offer advertisement).

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

After approval, an immigrant visa and adjustment of status to that of a legal permanent residence ("green card") status application can be made to the Immigration and Naturalization Service.  Many know that the "green card" application for employment based candidates take forever, but the main reason for the delay is the processing time for the labor certification application at the Dept. of Labor stage.  Therefore, applying under a preference category which does not require this process, if at all possible, is crucial.

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Standard LCA
Petitioner/Employer is required.
The LCA is first filed, then the petitioner/employer must wait until instructed by the Dept. of Labor to commence the "recruitment campaign."  Waiting for the Dept. of Labor's instruction can take many many months.
Step 1:  File the LCA.
Step 2:  Conduct "recruitment campaign" AFTER instructed by the Dept. of Labor.
Step 3:  Wait certification by the Dept. of Labor.

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RIR (Reduction in Recruitment) LCA
Petitioner/Employer is required.
If the job offered is within a "labor shortage" area, and this can be demonstrated through evidence and/or through PRIOR recruitment efforts, then the RIR may be possible.  In this case, the "labor shortage/prior recruitment" evidence is submitted with the LCA application.  If successful, the LCA will be certified (approved) at the local Dept. of Labor and then the regional Dept. of Labor.  In this case, one does not wait for the Dept. of Labor instructions, and future "recruitment efforts" may be avoided.

Step 1:  File the LCA with evidence of "labor shortage" or prior "recruitment campaign".
Step 2:  Wait certification by the Dept. of Labor.

Important:  This RIR procedure may be appropriate in the following situations:

a)  The offered job is within a "labor shortage" area,
b)  The petitioner/employer has been conducting "recruitment efforts" within the last 6 months (advertisements, interviews, etc.), and there has been no qualified workers,
c)  The petitioner/employer is willing to conduct the "recruitment efforts" for 6 months (advertisements, interviews, etc.) BEFORE filing the LCA application.  However, if this process finds a qualified worker, then you may have to revert to the standard LCA procedure.

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PERM Program (LCA) (Starts March 28, 2005)

The new LCA (labor certification application) program called "PERM (Program Electronic Review Management) System/Program" is an on-line electronic type of filing the LCA.  PERM is an attestation and audit system where a petitioner/employer seeking permanent labor certification conduct advertising and recruitment prior to filing the LCA.  PERM LCAs are expected to take 45 to 60 days to adjudicate (in contrast to the multi-year process for the Standard/Traditional- and RIR-type LCAs).  Some applications will be selected for auditing by the DOL (Department of Labor), either randomly or because responses to certain questions on the application trigger a need for additional information.  When an application is selected for a DOL audit, additional and supervised recruitment may become necessary.
This program will eliminate the current LCA programs, and is somewhat similar to the RIR program, requiring the petitioner/employer to:

1) first obtain a PWD (prevailing wage determination) from the SWA (state workforce agency) for the job offer,
2) conduct a recruitment campaign,
3) file the LCA ETA-9089 Form (information about the results of the recruitment through "attestations") via electronic format (on-line) directly to the DOL,
4) the DOL certifies within 45-60 days or will request an "audit" of the recruitment efforts (that can also result in additional supervised recruitment).

PERM:  PROCEDURE:

1.  Obtain a PWD (prevailing wage determination) from the SWA (state workforce agency) in the state where the beneficiary/employee would be employed.
Note:  PWD is valid for 90 days to 1 year, depending on the SWA (but note below when recruitment must take place).
Note:  The job offer's occupation's minimum requirements (education, experience, training, etc.) will impact the PWD as well as the advertisement/recruitment.

2.  Conduct "unsupervised" advertisement/recruitment using PWD information.
Note:  Recruitment must begin within the validity of the PWD (some types of recruitment must take place at least 30 days but not more than 180 days of the filing of the LCA, but there are exceptions).  Depending on "professional (bachelor's or higher)" or non-professional job offer, the advertisement/recruitment will differ.

3.  File the ETA-9089 LCA Form (that includes information of the results of the recruitment through "attestations") via electronic format (on-line) to the DOL.
Note:  Documentation of the recruitment is not submitted, but must be kept for at least 5 years.

... 4.  Review by the DOL, which will certify the application, or request an "audit" of the records and information relating to the recruitment campaign.
Note:  The DOL expects to take 45-60 days to certify the application or request an "audit."  Auditing by the DOL is either random or because responses to certain questions on the LCA will trigger a need for additional information or supervised recruitment. .

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Schedule A Pre-Certification LCA
The Schedule A Group 1 and 2 includes occupations that are considered "pre-certified" because there is a shortage of individuals.

Schedule A:  Group 1 consists of medical personnel, such as physical therapists and nurses.

If physical therapist, must have applicable State license.
If professional nurse, must pass CGFNS (Commission on Graduates of Foreign Nursing Schools) - or - has full/unrestricted license to practice professional nursing in the State of practice

Schedule A:  Group 2 consists of individuals of "exceptional ability" in science or arts (except for performing arts), and university teachers.

The "exceptional ability" requirement is:
1.  evidence of widespread acclaim and international recognition, and
2.  work during past year and intended work requires exceptional ability, and
3.  evidence from two of the following:

- receipt of major prizes/awards for achievement
- membership in association requiring outstanding achievement
- published material in profession publications written by, or about the individual
- evidence of participation as a judge for others
- evidence of original scientific research contributions of major significance
- authorship of scientific/scholarly books/articles
- display of work at artistic exhibitions in more than one country

Schedule B (Requires LCA Unless Waiver)
Requires labor certification, unless waiver, because there are no shortage of workers.  (Also, regulations at § 656.21(i) preclude the use of the RIR process for Schedule B occupations. The occupations on Schedule B are defined in the regulations at § 656.11. If the job opportunity being requested is in an occupation that is found in that section, then the job requested is on Schedule B and is not eligible for RIR processing.)

Schedule B occupations include:  assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.

I. Overview

"Schedule B" lists jobs for which the Department of Labor has determined that a nationwide surplus of United States workers exists and that the employment of aliens in these positions would adversely affect the wages and working conditions of U.S. workers employed in similar occupations. (20 CFR § 656.23.)

These jobs generally fall into two classes. First are jobs that require little or no education, experience or skill and workers can generally be trained quickly to perform satisfactorily. Then there are jobs characterized by relatively low wages, long and irregular working hours, and poor working conditions. Neither class of occupations will be certified unless waiver or removal from Schedule B is obtained.  (See 20 CFR § 656.11 for a listing and description of Schedule B occupations.)

Schedule B occupations include:  assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.

II. The regulation: § 656.23(d)

A. Waiver required for certification under Schedule B

In order for an alien to be certified for a Schedule B position, an employer must obtain a waiver.  The employer petitions the Regional Certifying Officer for waiver when the labor certification paperwork is initially filed with the local Job Service office. (20 CFR § 656.23(d).)

If waiver is granted, the CO will issue a labor certification. If waiver is not granted, the CO will follow the labor certification denial procedures set forth at § 656.25(c)-(g).

B. Documentation requirements

The regulations at § 656.23(d)(2) require that the petition include the following:

1. A written request for a Schedule B waiver.
2. A completed Application for Alien Employment Certification form.
3. The documentation required by  § 656.20(b), (c), (e) and (f) which set forth the general filing instructions for the labor certification process.
4. The documentation required by § 656.21 which specifies the requirements for the basic labor certification process.
5. Documentary verification, which the employer has obtained from the local job service office which contains the job opportunity in its administrative area, that the employer has had a job order for the same job on file with the same local office for a period of thirty calendar days and that the local office and the employer, using the job order, were not able to obtain a qualified U.S. worker.

C. Strict construction of the regulation

The regulations at § 656.23(d) are to be strictly construed. See Vermont Hotel, 89-INA-361 (Mar. 5, 1991), strictly construing the requirement at § 656.23(d) that a Schedule B order remain open for thirty calendar days.

* In Vermont Hotel, an employer hired U.S. workers prior to the expiration of the thirty-day period, but the workers failed to appear at work or left the job. Labor certification was properly denied because the employer failed to reopen the job order for thirty calendar days by contacting the state job service.

D. Household domestic service workers (avoidance of Schedule B denial)

III. Grounds for denial of waiver

A. Ground similar to denials under the basic certification process

Denial of a Schedule B waiver may be based on grounds similarly found under the basic labor certification process, such as:

* experience gained while working for the employer, in violation of § 656.21(b)(6), Super Seal Manufacturing Co., 88-INA-417 (Apr. 12, 1989);
* unlawful rejection of a U.S. applicant, in violation of § 656.21(b)(7), Listrani's Restaurant, 88-INA-380 (June 8, 1989); A.V. Restaurant, 88-INA-330 (Nov. 22, 1988);
* the failure to document sufficient testing of the labor market. Bill Ellis & Sons, 90-INA-226 (Sept. 20, 1991).

B. Error by local employment service

There is no entitlement to a waiver from Schedule B based upon the failure by the local employment service to refer all of the applicants for the job offered. Bob's Exxon, 89-INA-259 (May 2, 1991) (adequate test of the labor market was not achieved).

C. Failure to state ground for denial

A CO's failure to state the grounds for a denial of a Schedule B waiver will be found to be arbitrary and capricious. William and Daneen Miller, 89-INA-30 (June 12, 1990).

IV. Household domestic service workers

A. Definition

"Household Domestic Service" encompasses a variety of tasks in private households, including cleaning, dusting, washing, ironing, making beds, mending clothes, cooking, serving food and caring for children. (See § 656.11(b)(26).)

Two rules should be noted:

1. Job duties not title are determinative

A job's duties, not its title, determine whether the job contitutes household domestic service.

* Yu Hsia Liu-Hee, 90-INA-381 (Jan. 6, 1992) ("Children's Tutor" held to fall within the category of household domestic service worker where the job duties involved preparing meals, bathing children, washing and ironing clothing, and assisting children with homework).

2. Exclusion of health or instructional service workers from definition

Household workers who primarily provide health or instructional services are not considered household domestic service workers. § 656.11(b)(26).

* See Mr. and Mrs. William Gillman, 88-INA-406 (Feb. 27, 1990) (experience as a nurse's aide does not meet the definition of a domestic household worker pursuant to § 656.11(b)(26)).

B. Avoidance of Schedule B denial

An employer may avoid a Schedule B denial for a household domestic service worker in either of two ways, waiver or removal.

1. Waiver

Where it cannot be established that the alien has at least one year of paid experience as a domestic household worker, an employer seeking labor certification may petition for a waiver pursuant to § 656.23(d). See William and Daneen Miller, 89-INA-30 (June 12, 1990).

2. Removal

By negative inference, § 656.11(b)(26) implies that if the alien establishes at least one year of documented full time paid experience as a household domestic service worker, then the occupation is removed from Schedule B application. See § 656.11(b)(26).

3. Documentation of one year of paid experience

a. Regulatory provisions

To remove the application from Schedule B where the job offer involves a live-in household domestic worker, the requirements at § 656.21(a)(3)(iii) must be satisfied. Pursuant to this section, the alien's total paid experience must equal a full year's employment on a fulltime (forty hours per week) basis. Two years of working halftime will be sufficient; however, working six months for eighty hours a week will not suffice, since there must be employment which covers at least twelve months. The employment may be for more than one employer. (See § 656.21(a)(3)(iii).)

Documentation of the previous one year's experience must:

* Be dated and signed by the employer.
* Show the name and address of the person who signed it.
* Give information concerning the dates (month and year) the employment began and ended; the hours per day worked; the number of days per week worked; the place where the alien worked; the duties performed; the equipment and appliances used; and the wages per week or month.

b. Technical Assistance Guide provisions

(a) Documentation of one year previous paid experience demonstrates the alien's attachment to domestic service as an occupation, assures that the alien knows the unique demands of household domestic service workers, and suggests that the alien is likely to continue in the occupation.

(b) Key to the documentation required is that it reflect a bona fide employer-employee relationship existed. Therefore, experience in one's own home or experience gained from a close relative is not acceptable.

(c) This one year requirement is not a minimum job requirement for recruiting U.S. workers and should not be shown by the employer as a requirement for the job opportunity. The DOL has established that specific vocational preparation for a household domestic is no more than three months, therefore, a one year requirement will normally be found unduly restrictive and lead to a denial of certification.
(Information cited in (a), (b) and (c) above can be found at TAG No. 656, p.43 (Sept. 1981)).

(d) The Technical Assistance Guide identifies the following categories of occupations that fall under the designation of household domestic worker: day worker; ironer; laundry worker; domestic housekeeper, home; cook; houseworker, general; child monitor; butler; companion; butler, second; and personal attendant. (TAG I § 656.11.)

c. Requirement that experience be obtained in "arms-length" employment relationship

The one year of paid experience as a household domestic must be gained within a non-familial, bona fide "arms-length" employer-employee relationship. William and Daneen Miller, 89-INA-30 (June 12, 1990); Roger and Denny Phelps, 88-INA-214 (May 31, 1989) (en banc) (alien's employment with her former employer only qualified as paid experience for six months, up to the day she married the employer's son; the dissent disagreed).

d. Experience gained with applying employer

The experience cannot be gained through employment with the applying employer. Roger and Denny Phelps, 88-INA-214 (May 31, 1989) (en banc).

e. Experience gained in self-employment

Experience can be gained working in a self-employed capacity for multiple employers. William and Daneen Miller, 89-INA-30 (June 12, 1990).

f. No need to document experience where live-in requirement is deleted

An employer is not required to document that the alien possesses one year of paid experience as a live-in domestic where it deletes the live-in requirement on rebuttal. Karenann Pousard, 90-INA-172 (June 24, 1991).

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`PDF4Download (inaccessible): MNA "RIR Conversion/Preclusion of Schedule B" GAL 2-02(11/01)
`PDF4Download (inaccessible): MNA "Waiver Household Worker/Schedule B" (02/04)

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Special Handling Cases (LCA)
Petitioner/Employer is required.
Specially handled cases have a different requirement then the Standard or RIR LCA application.
The application is submitted to the national Department of Labor.

The types of individual who are eligible are:

- college/university teachers
- exceptional ability in performing arts (may be easier to apply for EB-1-A "extraordinary ability")
- professional athletes

College/university teachers:
Submit documentation of "competitive recruitment and selection process" that includes:

- A statement, signed by an official who has actual hiring authority, from the petitioner/employer outlining in detail the complete recruitment procedure undertaken; and which shall set forth: the total number of applicants for the job opportunity AND specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job AND report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process.
- A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements;
- Evidence of all other recruitment sources utilized; and
- A written statement attesting to the degree of the alien's educational or professional qualifications and academic achievements,

AND

- Applications for permanent alien labor certification for job opportunities as college and university teachers shall be filed within 18 months after a selection is made pursuant to a competitive recruitment and selection process.

Exceptional ability in the performing arts:
Submit documentation that at the individual's work experience during the past twelve months did require, and how the intended work in the United States will require, exceptional ability:

- Documents attesting to the current widespread acclaim and international recognition accorded to the alien, and receipt of internationally recognized prizes or awards for excellence;
- Published material by or about the alien, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);
- Documentary evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the alien has appeared, or is scheduled to appear; and/or
-Documents attesting to the outstanding reputation of repertory companies, ballet troupes, orchestras, or other organizations in which or with which the alien has performed during the past year in a leading or starring capacity,

AND

- A copy of at least one advertisement placed in a national publication appropriate to the occupation (and a statement of the results of that recruitment) which shall:  Identify the petitioner/employer's name, address, and the location of the employment, if other than the employer's location AND describe the job opportunity with particularity AND state the rate of pay, which shall not be below the prevailing wage for the occupation.

Note:   May be easier to apply for EB-1-A "extraordinary ability".

Employment-based immigration is comprised of 5 preference categories, which are commonly referred to as EB-1 through EB-5. Each category has the statutory eligibility requirements.  Employment-based immigration generally requires either that a foreign national is one of the best in the field of endeavor or that there are no qualified US workers available to fill the position offered to the foreign worker.  Depending on the preference category, the Labor Certification Application is not required (in this case, the process begins with the filing of the I-140 immigrant visa preference application).

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

(i) the labor certification has been certified by the Department of Labor,
(ii) the petitioner/employer has the ability to pay the offered wage, and
(iii) the foreign worker meets the educational and/or job experience requirements listed on the labor certification.

(i) the foreign national beneficiary (applicant) meets the substantive requirements for the preference category (i.e., "extraordinary ability"), and
(ii) that he/she is able to work in the field of endeavor.

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"Ability to Pay" the Offered Wage
For preference categories that require the Labor Certification Application, once the petitioner/employer has obtained labor certification, the petitioner/employer now files an I-140 immigrant visa application with the US CIS.  One purpose of this type of I-140 application that requires a certified LCA is to establish that the petitioner/employer has the ability to pay the offered wage (stated in the LCA).

Under 8 CFR § 204.5(g)(2), the petitioner/employer must be able to prove its ability to pay the proffered wage "at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence."  In short, the petitioner/employer must establish that it had the ability to (even it had not) provide the salary stated on the certified ETA-750 LCA and/or the I-140 immigrant visa application, since the filing date of the ETA-750 (or if I-140 only, the I-140 filing date).

Establishing "how" to prove that a petitioner/employer has the ability to pay has continued to raise concerns, and on May 4, 2004, the US CIS issued a guidance to service centers to clarify what types of documents are acceptable, and basic review procedures.

4May 4, 2004 US CIS Guidance
4Pre-May 4, 2004 Understanding

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May 4, 2004 US CIS Guidance

Any petition filed by or for an employment based immigrant, which requires an offer of employment, must be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage.  A petitioner must file a fully completed Form 1-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage.  Required initial evidence, as specified under 8 CFR 204.5(g)(2), includes copies of: (1) annual reports, (2) federal tax returns, or (3) audited financial statements.  The petitioner must submit a copy of at least one of these required documents.

Based on one of the three of the above documents, the US CIS needs to make a positive ability to pay determination in anyone of the following circumstances:

(1) Net income
The initial evidence reflects that the petitioner's net income is equal to or greater than the proffered wage.
(2) Net current assets
The initial evidence reflects that the petitioner's net current assets are equal to or greater than the proffered wage.
(3) Employment of the beneficiary
The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage.

The US CIS, in certain instances, can review a financial statement in lieu of initial evidence and/or additional evidence such as (1) profit/loss statements, (2) bank account records, or (3) personnel records.  Regardless, CIS adjudicators are not required to accept, request, or RFE for additional financial evidence.  Acceptance of these documents by CIS is discretionary.  Therefore if the required initial evidence is submitted and does not establish the petitioner's ability to pay, CIS adjudicators may deny the petition.  If the case is denied, the petitioner may file an appeal or a motion to reopen or reconsider in accordance with 8 CFR 103.3 and 103.5.  If the CIS adjudicator exercises discretion to accept either the financial statement or additional financial evidence, that evidence must clearly establish the petitioner's ability to pay.  If the CIS adjudicator has any doubts about whether the additional documents establish the petitioner's ability to pay, the CIS adjudicator may deny the petition and not RFE for additional evidence to further clarify the discretionary evidence that was accepted.

Note that under 8 CFR 204.5(g)(2), CIS adjudicators are not required to accept, request, or RFE for a financial statement from U.S. employers who employ 100 or more workers to establish ability to pay.
`PDF4Download: "Ability to Pay" Guidance Memo (US CIS/DHS) (05/2004)

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Pre-May 4, 2004 Understanding

The above can be established by:

(1) the petitioner/employer actually paid the beneficiary/employee paid salary equal to or greater than the offered wage, or
(2) the petitioner/employer's net income was equal to or greater than the offered wage, or
(3) the petitioner/employer's net income was equal to or greater than the offered wage minus wage actually paid (if employed), or
(4) the petitioner/employer's net current assets were equal to or greater than the offered wage, or
(5) the petitioner/employer's net current assets were equal to or greater than the offered wage minus wage actually paid (if employed).

Common documents to establish (1)-(5) include:

1. Form 941 Employer's Quarterly Federal Tax Return, W-2s and Tax Statements, Payroll Documents

Taxable income that exceeds the proffered wage in the year of filing and in all subsequent years is the best evidence of ability to pay the proffered wage, but small businesses may withdraw profits as “compensation to officers” to avoid double taxation.  Taxable income, together with a portion of compensation to the officers of a small company could exceed the proffered wage, whereby the net effect is that upon employment of another employee, a reduction of the overall compensation to officers would occur, and the company will be able to compensate the employee with the proffered wage.

The US CIS takes the position that:  The compensation of officers expense that is itemized on federal tax returns refers to payments made to officers of the corporation. In order to claim this expense on the tax return the person to whom these funds are paid must materially participate in the business. Further, the level of compensation cannot be excessive in relation to the services rendered by that individual on behalf of the business. In light of these facts, we consider this item to be in effect wages paid in consideration for the duties performed by the officer.  Further, many of the services rendered by the officers of the corporation may not be the same duties to be performed by the beneficiary and as such they are not considered to be a blanket source of income with which to compensate the beneficiary.

2. Bank Statements, Letters & Lines of Credit (bank's commitment letter, statement from employer's accountant/financial officer)

Must be shown that the line of credit was in effect as of the date of filing and documentation relating to the terms of the line of credit should be provided in support of the petition.  Absent corroborative documentary evidence, such as audited or reviewed financial statements, or federal tax returns, a statement from an accountant is not considered to be substantive evidence of an organization's ability to pay the proffered wage.

3. Annual Reports, Profit Loss Statement, Audited Financial Statements

Financial analysis ratios (cash ratio, quick ratio, debt to equity ratio or debt to assets ratio) can impact upon an petitioner/employer's ability to pay proffered wages.  If the current assets exceed the current liabilities with sufficient funds to compensate the beneficiary/employee upon review of an organization's current assets to current liabilities on the balance sheet, then then the organizations ability to pay the proffered wage is generally considered to be established.

The US CIS takes the position that:  the cash ratio and quick ratio calculations are actually more stringent measures than determining the organization's net current asset as is the practice at the US CIS.  These ratios only analyze cash, accounts receivable and marketable securities in relation to an organizations current liabilities. Other current assets, such as inventories are not included in the calculations.  Also, debt to equity ratios are measures of an organizations debt to its equity position and do not reflect the magnitude of an organizations liquidity.  Debt to asset ratios are a means to express the percentage of an organizations debt to its total assets and do not examine the nature of the assets encumbered by the debt or owned outright by the company.  Further, that while any of these ratios may be favorable to an organizations financial health, the US CIS deems that they do not serve to establish that the organization possesses sufficient net current assets with which to compensate the beneficiary.

4. Where a prospective U.S. employer has one hundred or more workers, a statement by a financial officer of the organization is sufficient.

`PDF4Download (inaccessible): MNA "Abiliy to Pay" (02/04)

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Concurrent Filing (I-140 & I-485) Rule
 

UPDATE:  June 16, 2005 The July 2005 Visa Bulletin shows a retrogression to "Unavailable" for employment-based third preference for all nationalities, as well as retrogression in the family-based preferences for Mexico.  Beginning July 1, 2005 and until immigrant visas become available for employment-based third preference categories, affected applicants will not be able to file Form I-485 or concurrently file Form I-140 and Form I-485 unless an immigrant visa number becomes available.  The third preference category for employment-based applications are for Skilled Workers, Professionals, and Other Workers and is 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to Other Workers.  Family-sponsored and employment-based preference visas are issued to eligible immigrants in the order in which a petition in behalf of each has been filed (spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal).  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Applicants who file for I-485 adjustment of status in the employment-based third preference before July 1, 2005 (other than those from mainland China, India and the Philippines) will have a priority date earlier than the cut-off date and will be allotted a number. `PDF4Download: Retrogression/Third Preference Category (Visa Bulletin/DOS) (7/2005) UPDATE:  December 29, 2005 As a result of the immigrant visa regression, beginning on January 1, 2005, and until further notice, affected applicants from mainland China, India, and the Philippines will not be able to file Form I-485 or concurrently file Form I-140 and Form I-485 unless an immigrant visa number is available, pursuant to the Visa Bulletin.  There is an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.  Family-sponsored and employment-based preference visas are issued to eligible immigrants in the order in which a petition in behalf of each has been filed (spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal).  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas: mainland China, India, and the Philippines. `PDF4Download: Concurrent Filing Memo (Regression/Country Specific) (US CIS/DHS) (12/2004)

...
For employment-based immigrant visa "green card" applications, there are generally three steps:

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS (INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

New rules allow for concurrent filing of the I-140 and the I-485 applications (not consular processing).  If an I-140 has already been filed, the I-485 can be submitted with the I-140 filing receipt (without approval).  Advantages include avoiding the initial processing time for the I-140, as well being able to file for benefits pursuant to the I-485, namely, employment authorization and advance parole (travel permit).  However, because the I-485 adjustment cannot be approved unless the I-140 is approved, the benefits may be revoked if the I-140 is denied at a later time.  The concurrent filing, in effect, would allow the I-140 and I-485 applications to be processed simultaneously, expediting the overall processing time (if compared to separately, and subsequently filing the applications).

Truly Concurrent?

The US CIS is aware that the I-765 employment authorization and/or I-131 advance parole (travel permit) can be filed with the I-485 "adjustment of status" application.  Under concurrent filing, the I-485, I-765 and/or I-131 can be filed with the I-140 immigrant preference application -- even though the I-140 immigrant preference application has not yet been approved.  Because the underlying application does not have to be approved, the US CIS is aware that abuse of the concurrently filing rule will occur (namely, by filing an concurrent application, the beneficiary/applicant will be issued employment authorization and/or travel permission).

Therefore, currently, the US CIS is screening concurrently filed applications for "prima facie" eligibility in the following manner:

1.  Upon receipt, conduct a prima facie review of the I-140 within 45-60 days of receipt of the application, then:
(a) if a RFE (request for further evidence) is not required, then, the I-485 (and related applications) will be processed within 90 days, or
(b) if a RFE is required for "additional evidence" only, then the RFE must be issued within 75 days of the receipt of the application, and the I-485 (and related applications) will be processed within 90 days, or
(c) if a RFE is required for "initial evidence" or "initial AND additional evidence," then the RFE must be issued within 75 days of the receipt of the application, and the I-485 (and related applications) will not be processed (additionally, the US CIS (INS) will have an additional 90 days to process the I-485 [and related applications], after receipt of the response to the RFE).
`PDF4Download (inaccessible):(blank document) DSI052903

 VSC US CIS (Vermont / Eastern Service Center)
The VSC US CIS (Vermont / Eastern Service Center) indicates that if a processing "hold" is placed on concurrently filed I-140 and I-485 for situations (b) and (c), then a response to a RFE (request for evidence) must be received for the I-765 (employment authorization) / I-131 (advance parole/travel permission) can be adjudicated.  On the other hand, if it is situation (a) where the I-140 Immigrant Preference application is considered "prima facie" eligible, then the I-765 employment authorization and/or the I-131 Advance Parole (travel permission) applications will be separated and processed, independently of the I-140.  However, if the I-140 is denied, the adjustment application, employment authorization and/or travel permission will be denied.
`PDF4Download: "Denial of Underlying Application for Concurrent Filing" Memo (US CIS/DHS) (02/2003)

Additionally, for concurrently filed applications, the VT US CIS (INS) prefers the following submission order:
- G-28 with check(s) attached
- I-485
- Supplement A, if appropriate
- Supporting documents for I-485
- G-325; evidence of lawful entry, if applicable; any supporting documentation; I-693 in sealed envelope)
- I-140 (if the I-140 was previously filed and is still pending, the I-797 Notice of Action (receipt)))
- Supporting documents for I-140

CSC US CIS (California / Western Service Center)
In March of 2004, the CSC US CIS (California / Western Service Center) will begin to adjudicate concurrently filed EB-2, non-National Interest Waiver (NIW), I-140 and I-485 applications on a concurrent basis apart from the US CIS' "prima facie" eligibility review processing and "hold" method (see above).  Instead of a review and specific "hold," the CSC will adjudicate the I-140 within 90 days, together with the I-485, provided fingerprints and name checks are cleared.
`PDF4Download: "Truly Concurrent Review Procedures" Memo (US CIS/DHS) (04/2004)

Employment-based immigration is comprised of 5 preference categories, which are commonly referred to as EB-1 through EB-5. Each category has the statutory eligibility requirements.  Employment-based immigration generally requires either that a foreign national is one of the best in the field of endeavor or that there are no qualified US workers available to fill the position offered to the foreign worker.

After successfully completing Step (1) ETA-750 LCA and/or Step (2) I-140 Immigrant Visa Application, the beneficiary/employer (or applicant for self-petitions) can begin the final step Step (3): I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS(INS), and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

In general, the I-485 Adjustment of Status is the process appropriate if the applicant is physically present in the U.S. in status.  This process allows an applicant to adjust his/her status to immigrant "green card" status without leaving the United States.  Filing the I-485 application also allows filings for benefit applications (during processing) of I-765 Employment Authorization and I-131 Advance Parole/Travel Document.  With these benefit applications, the beneficiary/employee/applicant may not need to extend his/her nonimmigrant visa "status."  However, in most regions, the I-485 applications take a significant amount of time.  Many applicants who choose the I-485 method will have filed this application prior to completion of the I-140 immigrant visa application because "concurrent" filing is allowed.  Also, the I-485 application allows AC21 106(c) "portability.  The regional US CIS office will handle the key parts of this application process.
 

I-131 Advance Parole / Travel Permit Required When Traveling Overseas An applicant who files, in the United States, an I-485 Adjustment of Status application to become a Lawful Permanent Resident "Green Card Holder," needs to have a valid I-131 Advance Parole / Travel Permit document if he/she is traveling overseas. An I-485 Adjustment of Status application may be filed at a Regional US CIS Office for employment-based "green card" applicants, and at the District (Local) US CIS Office for family-based "green card" applicants. The I-131 Advance Parole / Travel Permit allows the foreign national applicant, during an adjustment process, to lawfully exit and and re-enter the United States, without "abandoning" the adjustment application.  Even if an applicant has a valid entry document (a valid nonimmigrant visa), traveling overseas without the I-131 Advance Parole / Travel Permit document can result in the adjustment application to become "abandoned (the exception is for valid "H" and "L" visa holders). `PDF4Download: US CIS Advance Parole (Travel Permit) Press Release  (Nov 2003)  (DHS/US CIS) Do Not Travel Overseas if Subject to 3/10 Year Bar of Inadmissibility Applicants who are subject to the 3/10 year bar should NOT use the I-131 Advance Parole / Travel Permit document, even if the document has been approved/issued by the US CIS.  While re-entry into the United States may be possible, departure from the United States could ultimately result in the denial of Lawful Permanent Resident "Green Card" status at a later time. Applicants who have a pending an I-485 Adjustment of status to Legal Permanent Resident "Green Card" status under INA 245 are considered to be in a period of "authorized stay" and does not accrue unlawful presence.  (However, this is different from having visa "status.") Important -- Overseas Travel May Trigger Overstay Period:  Unlawful presence accrued prior to filing the adjustment of status application will be considered unlawful presence (but only triggered if he/she departs the United States).  If an individual, who has accrued more than 180 days of unlawful presence before filing an adjustment of status application under INA 245(a) or 245(i), departs the U.S. using advance parole/travel document, it will trigger the 3/10 year bar.  (The same for "V" visa holders.  Even if re-entry is allowed, departure will trigger the 3/10 year bar.) Because the applicant needs to establish admissibility and eligibility for an immigrant visa under INA 245(a)(2) at the time the adjustment of status determination is made (for example, on the date of the adjustment interview), even if an applicant has "authorized stay" during the pending I-485 adjustment application, by departing, the prior overstay period subject to the 3/10 year bar can be trigged.  In this case, the applicant will be considered inadmissible under INA 212(a)(9)(B)(i). Note:  Therefore, file a I-485 adjustment of status application within 180 days of the expiration of the visa "status" document (I-94 Arrival/Departure Card), and if "D/S," file before 180 days or more of violation status. i8Related Topic: Bar to Adjustment "Inadmissibility Grounds" (including "overstay") I-765 EAD (Employment Authorization Document) An EAD (Employment Authorization Document ) card may be issued for nonimmigrants who do not have work-authorized visas, but is eligible for employment authorization (F-1 Optional Practical Training, "E" and "L" derivative spouses, etc.). Additionally, those with pending employment- or family-based I-485 adjustment of status applications to become a "Green Card" holder (LPR/Legal Permanent Resident), can obtain an EAD card during processing. The EAD card is normally only valid for one (1) year, and many must renew the authorization while the application is pending. In June of 2004, the US CIS announced that it intended to provide EAD cards with a validity date of more than one (1) year for certain types of pending applications -- as the backlog of applications and processing time increase. Additionally, the DHS (Dept. of Homeland Security) has announced that it will issue new EAD cards with security features. `PDF4Download: EAD Card "New Design" (US CIS/DHS) (06/2004)

Consular Processing is the method generally used if an applicant is outside the U.S. (however, an applicant may choose to use Consular Processing for strategic or convenience reasons). Consular Processing allows an applicant to apply for an immigrant visa "green card" status at the U.S. Embassy overseas, usually in the applicant's home country or the country of last residence.  Consular processing requires completion and approval of the I-140 immigrant visa application.  This method also does not allow for filing of benefit applications during processing.  The greatest advantage of Consular Processing is that the processing time (to obtain the immigrant visa "green card") is much faster than the I-485 method.  Consular Processing, however, does not allow AC21 106(c) "portability."  The National Visa Center and the U.S. Embassy (Dept. of State) will handle the key parts of this application process. Note: If the beneficiary/employee (applicant) has accrued "unlawful presence" (overstayed in the United States), he/she may be ineligible to obtain the immigrant visa "green card" status, based on "inadmissibility."  Sometimes, to overcome the "inadmissibility" bar, the individual must file an I-485 Adjustment of Status application in the United States, and not file for Consular Processing.  (See "unlawful presence" (overstay).)

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Employment-Based I-140 Immigrant Visa "Green Card" Portability AC21 106(c)

AC21 106(c) allows the beneficiary/employee of an approved I-140 Immigrant Preference Application, who has filed an I-485 Adjustment of Status Application, and has waited more than 180 days, to transfer/"port" the approved I-140 application to a new petitioner/employer.  One reason for this rule is to allow the beneficiary/employee who suffer from delays to commence employment at a new employer/petitioner, without being "bound" to the first petitioner/employer during lengthy processing.  (However, it is important to note that there is no absolute requirement, in general, that the employee/beneficiary be working for the petitioner/employer throughout this process -- even though, it is customary).

Law:
AC21 106(c), INA 204(j) states:  "A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed."
AC 21 106(c), INA 212(a)(5)(A)(iv) states:  "A certification made under clause (i) with respect to an individual whose petition is covered by section 204 (j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued."
`PDF4Download: DHS "Revoked I-140 & Adjustment Portability" Memo  (08/03)  (DHS US CIS(INS))

...
Portability Rule

If the I-140 has been approved, and I-485 has been pending for more than 180 days, then the beneficiary/employee (applicant) can "port" the certified ETA-750 LCA and approved I-140 to a new petitioner/employer, as long as the new job is in the "same or similar occupational classification."  There is no need for the new petitioner/employer to submit an I-140 application, but a letter of "bona fide" letter of intended employment is required.  The letter should detail that the position is in the "same or similar occupational classification."  (Accompanied by a copy of the I-140 approval notice and I-485 Filing Receipt [indicating 180 days or more have passed since filing].)
`PDF4Download (inaccessible): MNA AC21 "Portability" Procedure (02/04)
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Portability Applies Even if Revocation

Even if the I-140 is revoked by the petitioner/employer, "portability" is allowed, as long as the I-140 was approved and the I-485 has been pending for more than 180 days (see above).

Example:
1.  Co. A files and obtains certification of Step (1) ETA-750 LCA.
2.  Thereafter, Co. A files and obtains approval of Step (2) I-140 Immigrant Preference Petition.
3.  Finally, the applicant/beneficiary/employee submits (3) I-485 Adjustment ("green card") application.
If more than 180 days have passed since filing (3) I-485 Adjustment -- the applicant/beneficiary/employee can change the petitioner/employer, from Co. A --> Co. B.

Question:
After changing from Co. A --> Co. B, if the (2) I-140 Immigrant Preference Petition is revoked -- will the (3) I-485 Adjustment application for the applicant/beneficiary/employee, continue and be valid for the new Co. B?

Answer:
Yes, according to the US CIS (INS)' finalized memorandum that states: even if the initially approved (2) I-140 Immigrant Preference Petition is revoked by petitioner/employer, as long as 180 days have passed since the filing of the (3) I-485 Adjustment application, the applicant/beneficiary/employee can continue with the adjustment ("green card") process.
`PDF4Download: DHS "Revoked I-140 & Adjustment Portability" Memo  (08/03)  (DHS US CIS(INS))

...
Revocation Used by Petitioner/Employer to Change/"Substitute" the Beneficiary/Employee

If a certified/approved Labor Certification Application is the underlying basis, then the I-140 can be revoked by the petitioner/employer to change/"substitute" the designated beneficiary/employee (assuming the beneficiary/employee has not used "portability," already).

In labor certification-based I-140 cases, where the petitioner/employer seeks to substitute a new beneficiary/employee in place of the initial designated applicant, the US CIS applies the Legacy INS' March 7, 1996 Memo, HQ 204.25-P, issued by then Associate Commissioner Louis D. Crocetti, to ensure that more than one beneficiary/employee/applicant benefits from a certified/approved Labor Certification Application:

The service center should ensure that the petitioner is not using the same labor certification more than once.  The adjudicator, using the Central Index System, must determine whether the original labor certification beneficiary has immigrated or applied for adjustment of status based on the labor certification and I-140 petition filed by the employer.  The adjudicator must also look up the status of any previous petition in CLAIMS.

If the original I-140 petition with the labor certification is located at the service center, the adjudicator should retrieve the original petition, send out a notice of automatic revocation of the initial I-140 petition approval, and place the original labor certification with the second I-140 petition.

If the original I-140 petition with the labor certification has been sent by the service center to a district office or suboffice, the adjudicator should contact that office and request that the petition be returned to the service center for revocation. Upon receipt and revocation of the original I-140 petition, the new I- 140 petition can be adjudicated.  If the original labor certification beneficiary applied for adjustment of status based on the original I-140 petition, upon revocation of the original I-140 petition, the application for adjustment of status should be denied.

If the original I-140 petition with the labor certification has been forwarded to the National Visa Center (NVC), the service center should issue a notice of automatic revocation and update CLAIMS accordingly.  The service center may either request the NVC to return the original I-140 petition to the service center or send a VISAS 90 cable to the NVC or United States consulate.  Once this has been completed, the service center may adjudicate the new I-140 petition filed on behalf of the substituted alien.  If the adjudicator at the service center has reasons to believe that the photocopy of the labor certification is not a true and correct copy of the original or has been altered, the service center should withhold adjudication of the petition and request the National Visa Center to return the original labor
certification with the I-140 petition to the service center.

Employment-Based I-140 Immigrant Visa "Green Card" Portability AC21 106(c) CHART

.......	"Standard Scenario"	"Concurrent Filing Scenario"	"Does it Apply to Consular Processing?"
Changing Petitioner/Employer Based on Certified ETA-750 & Approved I-140	Assuming that the I-140 has been approved, and I-485 has been pending for more than 180 days, then the applicant "port" the certified ETA-750 LCA and approved I-140 to a new petitioner, as long as the new job is in the "same or similar occupational classification."  (No need for the new petitioner/employer to submit an I-140 application.) To be safe, examine the duties, requirements, and salary of the position as stated on the certified ETA-750A form.  In regard to salary, the proffered wage is based on a MSA (Metropolitan Statistical Area), and therefore, re-locating to a different MSA may require further analysis. If the petitioner/employer withdraws the I-140 after it has been approved, the US CIS will provide the beneficiary/employee an opportunity to "port." PDFDownload (inaccessible): MNA AC21 "Portability" Procedure (02/04) PDFDownload: DHS "Revoked I-140 & Adjustment Portability" Memo  (08/03)  (DHS/US CIS)	An applicant using the "employment-based immigrant visa portability" is able to "port" the certified ETA-750 LCA and the approved I-140 immigrant preference visa application.  (No need for the new petitioner/employer to submit an I-140 application.)  In a concurrent filing scenario, unless and until the I-140 has been approved AND 180 days have passed, and the new position is in a "same or similar occupational classification," the beneficiary/employee will NOT be able to "port."  Therefore, if the petitioner/employer withdraws the I-140 before it has been approved, the US CIS will NOT provide the beneficiary/employee an opportunity to "port."	Assuming that the I-140 has been approved, I-485 has been pending for more than 180 days, and the new position is in a "same or similar occupational classification," then the applicant should be able to "port" the certified ETA-750 LCA and approved I-140 to a new petitioner/employer, and proceed with Consular Processing.  AC21 106(c), INA 204(j) does not include a limitation of the petitions' validity to ONLY an I-485 adjustment of status application.
Changing Petitioner/Employer Based on Approved I-140 Only	Assuming that the I-140 has been approved, and I-485 has been pending for more than 180 days, then the applicant "port" the approved I-140 to a new petitioner/employer, as long as the new job is in the "same or similar occupational classification."  (No need for the new petitioner/employer to submit an I-140 application.)  To be safe, examine the duties, requirements, and salary of the position as stated on the approved I-140 form.  In regard to salary, the wage is probably NOT based on a MSA (Metropolitan Statistical Area), and therefore, re-locating to a different MSA should NOT be a problem. PDFDownload (inaccessible): MNA AC21 "Portability" Procedure (02/04) `PDF4Download: DHS "Revoked I-140 & Adjustment Portability" Memo  (08/03)  (DHS/US CIS)	An applicant using the "employment-based immigrant visa portability" is able to "port" the approved I-140 immigrant preference visa application.  (No need for the new petitioner/employer to submit an I-140 application.)  In a concurrent filing scenario, unless and until the I-140 has been approved AND 180 days have passed, and the new position is in a "same or similar occupational classification," the beneficiary/employee will NOT be able to "port."  Therefore, if the petitioner/employer withdraws the I-140 before it has been approved, the US CIS will NOT provide the beneficiary/employee an opportunity to "port."	Assuming that the I-140 has been approved, I-485 has been pending for more than 180 days, and the new position is in a "same or similar occupational classification," then the applicant should be able to "port" the approved I-140 to a new petitioner/employer, and proceed with Consular Processing. AC21 106(c), INA 204(j) does not include a limitation of the petitions' validity to ONLY an I-485 adjustment of status application.

September 5, 20038 Immigrant Visa & Adjustment/Revoked I-140 Immigrant Preference Petition does not negate I-485 Adjustment Applications The US CIS (INS) has finalized its memorandum, allowing for revoked I-140 applications to be considered valid for the purposes of an I-485 adjustment application (as long as the I-485 has been pending for more than 180 days).  This is pursuant to the "adjustment portability" provision of AC21 106(c). Employment-Based Immigrant Visa "Green Card" Applications generally require three steps:  (1)  ETA-750 LCA, (2) I-140 Immigrant Preference Petition, and (3) I-485 Adjustment - or - Consular Processing.  The "Adjustment Portability" rule allows an applicant to change the petitioner/employer, if the last step (3) is an I-485 adjustment of status, and the application has been pending for more than 180 days. Example:  Co. A files and obtains certification of Step (1) ETA-750 LCA.  Thereafter, Co. A files and obtains approval of Step (2) I-140 Immigrant Preference Petition.  Finally, the applicant/beneficiary/employee submits (3) I-485 Adjustment ("green card") application.  If more than 180 days have passed since filing (3) I-485 Adjustment -- the applicant/beneficiary/employee can change the petitioner/employer, from Co. A --> Co. B. Yet, after changing from Co. A --> Co. B, if the (2) I-140 Immigrant Preference Petition is revoked -- will the (3) I-485 Adjustment application for the applicant/beneficiary/employee, continue and be valid for the new Co. B? The US CIS (INS)' finalized memorandum states that even if the initially approved (2) I-140 Immigrant Preference Petition is revoked, as long as 180 days have passed since the filing of the (3) I-485 Adjustment application, the applicant/beneficiary/employee can continue with the adjustment ("green card") process. `PDF4Download: DHS "Revoked I-140 & Adjustment Portability" Memo  (08/03)  (DHS US CIS(INS)) 8July 8, 20038 Immigrant Visa & Adjustment "Portability"?  BCIS states that "revoked" I-140 Immigrant Preference Petition does not negate I-485 Adjustment Applications The "Adjustment Portability" rule allows the beneficiary/employee to change the petitioner/employer, if the last step (3) is an I-485 adjustment of status, and the application has been pending for more than 180 days. Example:  Co. A files and obtains certification of Step (1) ETA-750 LCA.  Thereafter, Co. A files and obtains approval of Step (2) I-140 Immigrant Preference Petition.  Finally, the applicant/beneficiary/employee submits (3) I-485 Adjustment ("green card") application.  If more than 180 days have passed since filing (3) I-485 Adjustment -- the applicant/beneficiary/employee can change the petitioner/employer, from Co. A --> Co. B. Yet, after changing from Co. A --> Co. B, if the (2) I-140 Immigrant Preference Petition is revoked -- will the (3) I-485 Adjustment application for the applicant/beneficiary/employee, continue and be valid for the new Co. B? The INS has issued a memo indicating that even if the initially approved (2) I-140 Immigrant Preference Petition is revoked, as long as 180 days have passed since the filing of the (3) I-485 Adjustment application, the applicant/beneficiary/employee can continue with the adjustment ("green card") process. `PDF4Download: DHS "Revoked I-140 & Adjustment Portability" Memo  (04/03)  (DHS US CIS(INS))

Immigrant "Investor" Application

To participate in the Immigrant Investor Program, an individual must seek and obtain approval from the U.S. Citizenship and Immigration Services.  Participation in the program occurs after approval at three major steps in the application process:

1)  The immigrant investor applies for the EB-5 category (while either residing abroad or residing in the United States) by submitting US CIS Form I-526.

• Business proposal -- The application should clearly outline and describe the type of business, where it is to be located, how it is to be financed, the investor’s banking relationships, and information about the business (e.g., its customer base, number of employees, and source of inventory or raw materials).
• Investment of money -- Documents supporting the investment must show evidence that the investor has the funds to meet the program’s requirement, $1 million (or $500,000 for investment in targeted employment areas).
• Creation of jobs -- Immigrant investors must document that the proposed business venture will generate at least 10 full-time jobs.  Current regulations allow for job sharing.
• Applicant’s role in the business -- Immigrant investors must be actively involved in managing their businesses. Documentation proving this role would include, for example, copies of board minutes appointing the immigrant investor to a management position, copies of stock certificates, copies of tax records, or copies of articles of incorporation.

2)  The immigrant investor applies for conditional resident status after the Form I-526 is approved either by submitting a Form I-485 or by filing paperwork with the Department of State (overseas).  After obtaining conditional resident status, immigrant investors have a 2-year probationary period to establish their business and meet the EB-5 requirements.
3)  The immigrant investor applies for permanent resident status by submitting US CIS Form I-829.  When eligible, immigrant investors may apply for U. S. citizenship. However, this is not a requirement of the program.

`PDF4Download: GAO Report:  Application Procedure & Chart:  EB-5 Immigrant "Investor" Application (GAO) (04/2005)
`PDF4Download: GAO Report:  Complete:  EB-5 Immigrant "Investor" Application (GAO) (04/2005)

Unlawful Presence (Overstay)

Even if a foreign national applicant substantively qualifies for a nonimmigrant or immigrant visa "green card," there are grounds of "inadmissibility" that may ultimately disqualify him/her from obtaining the status.

For example, even if Step (1) ETA-750 LCA and/or Step (2) I-140 Immigrant Visa Application is successfully completed, the beneficiary/employee (applicant) may NOT be eligible to proceed with Step (3).

There are grounds of "inadmissibility" that may ultimately disqualify the individual foreign national, and the most common is based on "unlawful presence" (overstay).

It is important to note that the period of authorized stay is not necessarily determined by the validity period of a visa "sticker" (inside a passport) issued by the U.S. Dept. of State (U.S. Consulate/Embassy), but by the I-94 Arrival/Departure Record card issued upon admission to the United States, by the US CIS (INS).

bbbb	What is it?	Who issues it?	Other
Visa "Sticker"	The "visa" inside a passport.	US Dept. of State (US Consulate/Embassy, located overseas, or "revalidate"* in the U.S.) Note:  Some visas require the "status" to be approved, first.	This is an "entry document," generally valid to use to ENTER the U.S., until expiration.
Visa "Status"	The I-94 "Arrival/Departure" card, -or- the US CIS (BCIS/INS) "Approval Notice," Form I-797A (that has the I-94 card).	US CIS (BCIS/INS), at POE (port-of-entry), - or - the US CIS (BCIS/INS) (located in the United States).	This document generally proves what visa "status" you are in, in the U.S. and also, the DURATION of your stay.
bbbb	bbbb	bbbb	*Revalidation of the visa "sticker" is limited to certain visas (and also if one has held the same visa, in the past.)

Unlawful presence in the United States can affect an applicant in many different ways.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created the "3- and 10- year inadmissibility" bars for individuals who are unlawfully present in the United States.  The overall consequence of being "unlawfully present" are:

1.  If in the U.S., and applying for a nonimmigrant visa, prohibit an applicant from "changing status" in the United States.
2.  If outside the U.S., prohibit an applicant from obtaining a "visa" (nonimmigrant OR immigrant) at the U.S. Consulate/Embassy.
3.  Even if applicant successfully completes Step (1) ETA-750 LCA and Step (2) I-140 Immigrant Visa Application, the applicant may NOT be eligible to proceed with Step (3): I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

i8Details: Bar to Adjustment "Inadmissibility Grounds"

Other:

i8Related Topic: Social Security Number -- SSA, SSN, ITIN (TIN) & I-9

i8Related Topic: Foreign National Entry & Departure Monitoring/Tracking System "US VISIT"

i8Related Topic: Database of Foreign Nationals

Recommended U.S. Immigration-related Web Sites...

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