I have discussed employment-based visas, labor certification, H-1Bs, exceptional and extraordinary ability aliens, and L-1 transfers in various articles on my website. However, I wanted to write one article which would cover in general terms, the “nuts and bolts” of immigration for professionals and degree-holders or equivalent through the time-tested H-1b and Labor certification route. Be aware, due to natural limitations of space, this article is only an overview of the process.

The process usually begins with an individual – let’s say a recent college graduate -obtaining a job with an U.S. employer. The college grad is probably on a “optional practical training” status, meaning that he or she can work for up to one year for any employer in the United States in the specialty for which he or she was awarded the degree. During the optional practical training period, the student obtains H-1b non-immigrant worker classification through an application filed by the employer. Sometimes however, a student may for one reason or another not be eligible for the optional practical training. Students who cannot obtain optional practical training would have to switch from F-1 student status directly to H-1b student status. Furthermore, there may be aliens coming directly from overseas who will enter the United States on another non-immigrant status and thereafter switch to H-1b status, or directly as H-1b non-immigrant workers.

To recap, the first step in the long road toward immigration through the employment based preference starts for most aliens with the H-1b non-immigrant work visa. The H-1b visa application is made on form I-129 to the INS. The current filing fee is a whopping $1,110.00 for most employers. (University and non-profit entities are among those exempt).

The H-1b is filed with the INS depending on where the employee is going to work. There are four regional INS Service Centers – in Nebraska, Texas, California, and Vermont. Where the case is filed depends on which Service Center has jurisdiction over the particular state where the employee will work. The INS typically takes between 30 and 90 days to approve an H-1b application. Beginning July 2001 or later, the INS intends to begin offering “expedited” H-1b processing for an additional $1,000.00! (This brings the total fee to $2,110.00 at current fee levels).

There is an annual quota for H-1Bs. Currently, the quota stands at 195,000 and this quota will be in effect until fiscal year 2003. Beginning October 1, 2003, the quota will drop to a paltry 65,000 H-1b visas per year.

The H-1b visa is valid for up to three years. It may be renewed for another three years for a maximum of six years. That six-year maximum may be extended in certain cases pursuant to the “American Competitiveness in the 21st Century Act” (AC-21) enacted by President Bill Clinton on October 18, 2000. Various exceptions to the six-year maximum under the H-1b include having a labor certification application or immigrant petition pending for over one year with either the Department of Labor or the INS. Details on the AC-21 Act and its various benefits and exceptions to the 6-year cap are also available on my website.

Assume now that the foreign worker is in the United States, working for his U.S. employer on his or her H-1b visa. The foreign worker then evidences an interest to remain permanently in the United States. The H-1b is not going to accomplish this. It is merely a non-immigrant visa, specifically issued for employment with only the U.S. employer who applied for the visa. H-1b visas can not be “transferred”. The process for an employee to begin working with another employer means that the new employer must commence the H-1b process and proceed through all of the steps in the process as though a brand new H-1b visa was being requested.

While the H-1b visa is valid, the foreign worker typically begins the next stage of the application for permanent residency (“green card”). That process is typically through labor certification. Labor certification is a process by which the US job market is tested to determine whether there are any ready, willing, able and qualified US workers who can fill the job. The US Department of Labor attempts to protect the US worker from foreign competition through the labor certification process.

Labor certification follows one of two main avenues: labor certification through “Reduction In Recruitment”, (RIR) or “regular” labor certification. The main difference between these two avenues to labor certification is that under “Regular” labor certification, the State Employment Services Agency (SESA) authorizes the advertisement and recruitment for the position. In the case of “Reduction in Recruitment”, the employer institutes advertising and recruitment prior to filing the application for labor certification and thereafter submits the entire application, including the recruitment results, to the SESA. If the SESA finds the application and recruitment is acceptable, it will forward the application to the US Department of Labor (US DOL) for approval.

Once labor certification has been approved by the US Department of Labor, the process is far from complete. The next step is filing the “Immigrant Petition for Alien Worker”, form I-140, with the INS. The INS assesses two main issues in adjudicating the I-140 application: first, the INS will review whether the employer has the financial ability to pay the required prevailing wage to the foreign worker. Second, the INS will check whether the foreign worker has the necessary skills and qualifications for the position as required by the employer at the time that the application for Labor Certification was filed.

Once the I-140 application is approved, the final stage of the process is all that remains to be accomplished. At this point, the alien worker and his or her dependent family members, if any, apply for “Adjustment of Status”. Adjustment of Status is an application to the INS for the “green card”. It is made on Form I-485 and is accompanied by Form G-325 A, listing the aliens or the dependent family members’ biographic information. The application is submitted by mail to one of the four INS Service Centers discussed earlier. In addition, at this time applications for Advance Parole (travel outside the United States while the Adjustment of Status application is pending) and applications for Employment Authorization for dependent family members can also be filed. Currently, the Adjustment of Status application is taking over 1 year to be approved. Therefore, along with the I-485, it is usually a good idea to apply for Advance Parole and for Employment Authorization for the principal alien and dependent family members who wish to work.

Once the I-485 application is approved, the INS will send the applicant a notice. The notice will ask the applicant to proceed to the nearest INS district office to provide photographs, signature, and fingerprints so that the “green card” can be printed and mailed to the alien.

Once the adjustment of status has been approved, the foreign worker becomes a legal permanent resident (LPR) of the United States with all the benefits and duties required of that status. Keep in mind that LPR’s cannot vote and can be removed (deported) for most felonies and crimes. The “Legal Permanent Resident” alien can work for any US employer after the approval of the “green card”. The “Green Card” is not US citizenship. Five years after the INS approves the Green Card, the LPR becomes eligible for naturalization to become a US citizen.

Copyright 2001 Farhad Sethna, All rights reserved