General Overview of Employment-Based Immigration That
Requires Labor Certification
1. Most employment-based cases require certification
from the Dept. of Labor (DOL) showing that there are no available, qualified
U.S. workers to do the job offered the FN.
- Labor certification can be accomplished using generic jobs and advertising,
known as "Reduction in Recruitment (RIR)."
- Labor certification requires certain wage rates, geographic locations
and skills. If any of these change, the employee will usually need to start
over with a new labor certification.
- A few employment-based cases do not require labor certification, in
which case the employer initiates the case at the I-140 stage.
2. All employment-based cases require an Immigrant Visa
Petition (I-140) to be filed by the employer to determine what preference category
the FN will be in.
- The employer can only file the I-140 after labor certification is approved
by DOL.
- If the job requires a Master's degree or higher and the FN had that
degree when he/she began the job, the FN will be 2nd preference.
3. All employment-based cases require an individual application
to adjust status to that of permanent resident, known as AOS.
- The applicant can only file for AOS after the USCIS approves the employer's
I-140, and the employee's priority date is current.
- AOS includes a separate application for Employment Authorization Document
(EAD) to ensure right to work.
- AOS includes a separate application for Advance Parole (AP) to ensure
right to travel.
- The AOS application focuses on whether the FN is excludable for some
personal reason.
- It includes detailed background information and documentation about
the individual, including medical exams, fingerprints, birth certificates,
etc.
- AOS is normally filed at USCIS Service Center where the employee lives.
4. The time line for the typical process is as follows:
RIR Labor Certification (Filed with DOL)
6-18 Months
(DOL Regions Process times vary and slow downs are common due to work load/resource
allocations by DOL).
I-140 Immigration Visa Petition (Filed with USCIS Regional Service Center)
4-12 Months
(USCIS time varies based on preference petition category and geographic location).
AOS Adjustment Of Status (Filed with USCIS Regions Service Centers)
8-36 Months
(USCIS time varies based on priority dates and workload/resource allocation
by USCIS).
