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New York Immigration Attorney

Green Card Based on Employment

General Information:
In order to apply for a Green Card based on employment you must have an approved Labor Certification OR you must be exempted from filing a Labor Certification (e.g. if you are a High Level Employee, Multinational Manager and or a Schedule A Employee).

Labor Certification:
A labor certification is a document issued by the US Department of Labor (US DOL), which basically indicates that there is a shortage of US employees in certain occupation. Before filing a labor certification application the US employer MUST try to recruit, subject to the supervision and regulations of the US DOL, American Workers for the position, which has been offered to the foreign national. Certification may be approved ONLY if the employer can show that the position cannot be filed by an American Citizen and the foreign national candidate is in fact qualified to fill the position. Effective March 28, 2005 the US DOL is processing Labor Certifications within 60 days.

After the labor certification application is approved, the alien must next wait for a Visa number and apply for a green card, since green cards under this category are subject to annual quota. The Visa Bulletin indicates the waiting period for a Visa number.

Frequently asked questions:

How long it takes for the US Department of Labor to issue the labor certification?
Effective March 28, 2005 the US Department of Labor is issuing labor certifications within 45-60 days. Delays may happen, especially, when a case is selected for audit, randomly or for any other reason.

How do I apply for a green card?
Once a labor certification has been approved and a Visa number becomes available you may file the green card application. This may be done by applying for an Immigrant Visa (if you are outside the US) OR for an Adjustment of Status (if you are in the US and eligible to adjust). During the process of the application you may request a temporary work authorization so you can start work before your green card application is approved. You must not leave the US until your green card application is approved. If you do leave before you get the green card, your application may be denied. There is an exception to this rule and you may get a special permission to leave the US for a short period of time in cases of emergency. Except in rare cases a green card through employment does normally require personal interview.

How long it takes for the USCIS to make a decision on my application? The USCIS will normally make a decision on your case within approximately twelve months.

Can I change my employer?
Yes, you may change your employer. However the new employment must be in the same or similar position. Generally speaking, you are not required to work for your employer, before your green card application is approved. The purpose of the green card application is to allow you to work for the sponsoring (future) employer once your application is approved. Therefore, you may, for example, work on an H-1B Visa for one employer and be sponsored for a green card another, unrelated company.

Can another employer continue my green card application?
Yes. The law allows you to “port” to another employer, after your employment based petition and green card application has been pending with the USCIS for at least 180 days, provided the new employment is in the same or similar position.

I have my own company now; can I sponsor myself and continue my green card application?
Yes. The law allows you to “port” to another employer, including self employment, after your employment based petition and green card application has been pending with the USCIS for at least 180 days, provided the new employment is in the same or similar position.

I am on H-1B Visa and my employment based green card and labor certification is still pending with the USCIS, what are my options?
As an H-1B Visa holder you have a big advantage in these circumstances. The reason is that, as long as your labor certification OR employment based green card application is pending for 365 days or more you are entitled to extend your H-1B Visa in one year increments, beyond the statutory limit of six year, until your green card is approved.

Do I have to come to your office in order to file the application?
NO. Almost every application to EXTEND/ CHANGE a status for a Visa does not require a personal meeting in our office and can be made through mail, fax or email correspondence.

How do I start a case?
To start a case you will have to provide us with your resume and a profile of the organization who wishes to sponsor you for the green card. We charge $275.00 to evaluate a case. The payment is non-refundable. However, if a decision is reached within 30 days to employ the services of our firm, the payment for the evaluation will be credited toward the additional legal fees expected to be paid for this service.

*Note that the above prices are subject to change at any time and without further notice. Prices do not include applications for dependents, dealing with Notice of Actions, out of pocket expenses and any unexpected circumstances we may have to address.

**This is general information and is NOT intended to provide legal advice.

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