Immigrant Petition for Alien Worker (I-140)

Immigrant Petition for Alien Worker (I-140)

If an alien is already legally present in the United States through aTemporary visa, then the individual can follow a three-step process tobecome a permanent resident. The worker’s employer completes thefirst two steps so that the employer can hire the worker in apermanent, rather than the temporary basis allowed by nonimmigrant statusof the worker. The third step is completed when the worker requests an adjustment ofpermanent resident status using an application to register residencepermanent or adjustment of immigration status. Generally, the processing of thepermanent residence form does not take more than three (3) months, even if the processing time varies from case to case.

Nonimmigrant Worker Attorney in The Woodlands, TX

With experience in corporate transactions, litigation and commercial operations, attorney Luis F. Hess is specialized and situated on the subject to advice potential clients on how to help companies with their labor immigration requirements.

With an office in Shenandoah, just north of The Woodlands, Luis Hess represents clients throughout Montgomery County and Harris County, TX. Request a consultation to learn more about becoming a permanent resident for work and employer-based immigration solutions.

Steps for a foreign worker to become a permanent resident:

The following steps are necessary for an immigrant worker to become a permanent resident.

First, the employer must obtain a labor certificate from the Department of Labor certifying that there are not enough capable, willing, qualified, and available workers, and that hiring the foreign worker permanently will not adversely affect the wages or working conditions of employed U.S. workers. similarly. (Clause 8 U.S.C. §§ 1153).

Second, the employer must apply and USCIS must approve the immigrant visa petition that assigns the worker to a permanent immigrant visa preference category for employment-based permanent residence. The process and the purpose of the request have been explained in clause 8 CFR § 204.5 (a).

However, the worker does not receive a Visa immediately after theapproval of the employer’s visa application, because there is a fee in whichonly a certain number of Visas are available per country of origin each quartercalendar. Instead, an approved petition makes the worker eligibleto receive a Visa once it becomes available in your petition category.

The third step must be completed by the worker. The worker must request andobtain permanent resident status. Note that the worker cannot submit his application for registration or adjustment until a Visa is availableimmediately. Clause 8 U.S.C. § 1255 (a) (3); 8 C.F.R. § 245.2 (a) (2). Visas areissued to eligible workers as they become available and in the order inthat the workers’ employers submitted their petitions. 8 U.S.C. § 1153(e) (1).

The priority date for the Immigrant petition and to maintain the correct order, itis assigned by the USCIS department, this is for each request thathas been approved, priority date is based on the date that the applicant employer submitted his application for labor certification. To determinewhether a visa is immediately available to submit your registration applications oradjustment of status, immigrant workers should consult a Visa Bulletinmonthly published by the State Department. The Visa Bulletin isorganized by country of origin and visa preference category. Yes, there areenough visas available for all known applicants from a countryspecific and a specific preference category, then the Visa Bulletinlists that combination as “current”. All applicants that matchthat combination can file an application for registration or adjustment of status,regardless of your priority date.

When there are not enough visas available for all known applicants for a specific combination, the Visa Bulletin lists a deadline. Only those applicants who have priority dates before the deadline can apply. Sometimes a deadline can be pushed back, which means fewer visas are available than previously projected.
When that happens to an applicant whose application for registration or adjustment of status has already been filed, the applicant is forced to wait until the deadline, again, advances beyond their priority date for their application to be adjudicated.

Portability of the Nonimmigrant Alien Petition and Labor Certificates

Before 2000, a worker had to stay with his sponsoring employer until his application for registration or adjustment of status was approved because approval of the petition was entirely dependent on the worker staying with the same employer. According to the legal scheme, both the labor certificate and the petition of the immigrant worker belonged to the employer.

The employer is the applicant for the alien immigrant petition; the worker is considered the beneficiary of the petition. Clause8 U.S.C. § 1154 (a) (1) (F), establishes that any employer who wishes and intends to employ within the United States an alien entitled to classification under section 1153 (b) (1) (B), 1153 (b) (1) (C), 1153 (b) (2) or 1153 (b) (3) of this title may file a petition with the Attorney General for such classification. “8 CFR § 204.5 refers to the employer as “petitioner” and the worker as “beneficiary”.

In 2000, Congress passed the American Competitiveness in the 21st Century Act (AC21), which amended the Immigration and Nationality Act (INA) with respect to nonimmigrant foreign workers. The goal of AC21 was to help employers retain the skilled workers needed for the technology revolution.

AC21 added INA in clauses §§ 204 (j) and 212 (a) (5) (A) (iv). Those provisions made migrant foreign worker applications and labor certifications transferable to new employers for long-delayed applicants for adjustment of status applications.

A petition under subsection (a) (1) (D) of this section for a person whose application for adjustment of status has been filed and has not been judged for 180 days or more will remain valid with respect to a new job if the person changes the job or employers of the new job are in the same or similar occupational classification as the job for which the petition was filed.

The AC21 portability provision for labor certificates is remarkably similar. According to AC21, a worker no longer must stay with his employersponsor until your application for registration or adjustment of status is approved. In instead, the worker’s new employer can use the worker’s labor certificationprevious employer and the immigrant worker petition to hire theemployee. Under this process, the employer is said to “move” to the newemployee. This portability feature is available if the newjob is in the same or similar occupational classification as the previous job.

Have Immigration Concerns?

Whether you want to live in the US, get a US visa, bring your family, get a job, or legally stay in the country, our Shenandoah immigration attorneys are here to help!

The different classifications listed on the USCIS Immigrant Alien Worker Form include:

  • Alien of extraordinary ability
  • Outstanding teacher or researcher
  • Executive or Multinational Manager
  • Member of professions with advanced degree / exceptional ability
  • Skilled worker
  • Professional
  • Another worker

Additional Resources

Employment-Based Immigration – Visit the U.S. Citizenship and Immigration Services (USCIS) website to find an article that explains the qualifications for an immigrant worker to become a lawful permanent resident in the United States based on employment. Learn about the preference categories for each type of job or occupation and get basic information about green card eligibility.

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