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Articles Posted in Green Card

When a US company wishes to hire foreign, workers with non-immigrant status temporarily, they may elect to use an H-1B visa, an L-1 visa or other options that are available to them. However, if a business wants to hire a foreign worker permanently, they must first go through a process called labor certification. Basically, this process requires the employer to prove they are unable to find US residents who are capable of doing the job. This is the first step in the process of getting US permanent residency or “green card.”

It is important to understand that the Department of Labor defines “qualified” as someone who can fulfill the minimum requirements for the position. If a US resident has the minimum requirements to fill the position, a company cannot offer the position to a foreign worker.

The controversy of labor certification

The stated goal of labor certification is “to protect US workers and the US labor market by ensuring foreign workers seeking immigrant visa classification are not displacing equally qualified US workers.” It is however a controversial system, since the procedures force US employers to represent minimum requirements which are then reviewed by the Department of Labor. These requirements are then matched up with the Code of Federal Regulations and the employer must also prove they have not hired workers who have less experience than what they are requesting for the open position. Others argue that labor certification forces ;employers to offer long-term employment to workers who are on a temporary visa and then adjust the job description to allow this person to remain in the position.

The best thing about the application for an adjustment of status is that it signifies the last step on the road to obtaining a Green Card. Permanent resident status is granted once the application has been approved.

There are some additional benefits that can be realized while you are in the pending period of your application for adjustment of status:

  • You will be eligible to apply for a Work Permit which will enable you to work for any employer during the pending period.
  • You will also be able to apply for Advance Parole which will give you the ability to travel abroad during the pending period.
  • While you will be able to legally stay in the US without a valid non-immigrant status during the pending period, you might want to consider keeping your non-immigrant status. Specifics of your circumstances should be taken into consideration.

Another thing to think about was recently published on the New York Daily News website. It reminded us that:

Applying for a green card is necessary for securing permanent residence in the US. If you've gone through the process and already obtained a green card, congratulations; you've surmounted a major obstacle to remaining and working in the country. However, as a green card holder, you still remain vulnerable in multiple ways and need to safeguard against losing your status in the future.

Proving your intention to remain in the US

If immigration officials have doubts about your intention to reside permanently in the US, you might lose your green card. One example of such a situation is if you begin to live for lengthy periods of time in another country. It's not enough to make sure you do not stay outside the US for more than 6 months straight and the return to the US for a few weeks or days each time.

One general piece of advice for showing intent to reside in the US is to apply for a reentry permit if you're planning to leave the US for more than one year, but less than two years. However, even if you're leaving the US for less than one year, you might still come under suspicion for having abandoned your permanent resident status. To strengthen the case that you wish to remain a permanent resident, you should have a valid US address, open and maintain a bank account in the US, and correctly file income tax returns, even when you're abroad. If need to go overseas for some length of time, document the reason why; for instance, if you're abroad for business reasons, keep a handy copy of your employment contract.

Labor certification is the first step on the road to a green card through employment sponsorship. For those unsure of what labor certification specifically means, it is the process created by the U.S. Department of Labor to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers."

At one time, this process took years, as the Department of Labor would provide instructions to the employer on how to recruit for the position and searching for U.S. applicants. In 1998, a streamlined approach was implemented wherein the employer would recruit first and then file evidence about a lack of minimally qualified U.S. workers afterwards. Then in 2005, PERM was introduced.

PERM, which stands for Program Electronic Review Management, is the completely electronic version of labor certification, designed to further speed up the process, which can now be measured in months rather than years. But despite this speedier process, PERM still requires a lot of effort.

The constitutionality of the Defense of Marriage Act (DOMA) is set to be reviewed by the U.S. Supreme Court. The Court’s ruling would have an effect not only on same-sex couples but also on immigration and deportation.

Currently, one possible route to adjusting status to a permanent resident (green card) is through sponsorship of a US citizen spouse. Foreign-born men and women who marry someone of the opposite sex who is an American citizen are eligible to apply for permanent residency and, once residency is granted, can ultimately apply for citizenship. This is not the case for same-sex couples. In forty states, same-sex couples are unable to marry. Furthermore, the federal government does not recognize same-sex marriages conducted in the ten states that allow it. This means that foreign-born men and women involved in same-sex relationships are unable to apply for permanent residency due to marriage.

The Defense of Marriage Act (DOMA) prohibits the marriage between persons of the same sex. This law is being challenged for being unconstitutional. The US government has issued an official statement that it cannot support the constitutionality of the law. This leaves the issue solely with the US Supreme Court.

Provisional Waiver of Inadmissibility

There is new relief available for aliens who entered the US illegally or overstayed their visas and are otherwise ineligible under Section 245(i) of the Immigration and Nationality Act. Beginning March 4, 2013, they can apply for a provisional waiver of inadmissibility. This new rule will allow the alien to file for a waiver while still in the US. If the provisional waiver is granted, the alien can apply for the immigrant visa abroad and will have some assurance that his waiver application before the consulate will be approved quickly and then return to the US as a permanent resident.

Under the present rule, an immigrant who cannot adjust status will have to leave the US to apply for a visa abroad and apply for a waiver. The intending immigrant will need to secure a waiver of his inadmissibility in order to get a visa approval. Some intending immigrants get stranded for months or years trying their luck on getting a waiver. Some get their waiver application denied and never return to the US.

The new procedure will be available for immediate relatives of U. S. citizens (parents, spouses, and children under the age of 21 and unmarried) who are unable to adjust status in the US. A provisional waiver is a request for the non-application of the penalty or bar caused by their illegal stay upon showing that a denial would cause extreme hardship to their U. S. citizen parent or spouse.

The terms “immigrant visa”, “permanent resident”, “resident alien” and “green card” status all imply the same thing. They represent the right of a foreign national to permanently live and work in the United States.

The final step in the process to obtaining permanent residence is either an immigrant visa at the US Consulate or adjustment of status in the US.

We recommend adjustment of status whenever possible. There are additional benefits that can be realized while you are in the pending period of your application for adjustment of status:

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