Immigrant Petition for Alien Worker

If an alien is already lawfully present in the United States through a temporary visa, then the individual can follow a three-step process to become a permanent resident. The worker's employer completes the first two steps so that the employer may hire the worker on a permanent basis, rather than the temporary basis permitted by the worker's non-immigrant status.

The third step is completed when the worker applies for an adjustment of status to permanent resident using an Application to Register Permanent Residence or Adjust Status. It usually takes no more than three (3) months for the permanent residence form to be processed, although processing time varies from case to case.

Premium Processing is a service offered by USCIS for anyone filing a non-immigrant worker's form. For an additional $1,225 fee paid to USCIS, the case will be processed in two weeks. As an experienced immigration attorney, Luis F. Hess can help you through each step of the process.

Attorney for the Non-Immigrant Worker in The Woodlands, TX

With experience in corporate transactions, litigation, and business operations, attorney Luis F. Hess is specially situated to advise potential clients on how to help businesses with their employment immigration requirements.

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


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Overview of Legal Permanent Residence Status for Employment


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Steps for an Alien Worker to Become a Permanent Resident

The following steps are required for an immigrant worker to become a permanent resident. First, the employer must obtain a labor certificate from the Department of Labor that certifies that there are insufficient able, willing, qualified, and available workers, and that hiring the alien worker on a permanent basis will not adversely affect the wages or working conditions of similarly employed U.S. workers. 8 U.S.C. §§ 1153.

Second, the employer must file, and USCIS must approve, an immigrant visa petition that assigns the worker to a permanent immigrant visa preference category for employment-based permanent residency. The petition process and purpose has been explained in 8 C.F.R. § 204.5(a).

The worker does not, however, receive a visa immediately upon approval of the employer's visa petition, because there is a quota where only a certain number of visas are made available per country of origin each calendar quarter. Instead, an approved petition makes the worker eligible to receive a visa once one becomes available in their petition category.

The third step must be completed by the worker. The worker must apply for, and be granted permanent resident status. Keep in mind that the worker may not file his registration or adjustment application until a visa is immediately available. 8 U.S.C. § 1255(a)(3); 8 C.F.R. § 245.2(a)(2). Visas are issued to eligible workers as they become available and in the order in which the workers' employers filed their petitions. 8 U.S.C. § 1153(e)(1).


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The Priority Date For Immigrant Petition

To maintain the proper order, USCIS assigns each approved petition a priority date based on the date that the petitioning employer filed its labor certification application. To determine whether a visa is immediately available to file their registration or adjustment of status applications, immigrant workers must consult a monthly Visa Bulletin published by the Department of State.

The Visa Bulletin is organized according to the country of origin and visa preference category. If there are sufficient visas available for all known applicants from a specific country and of a specific preference category, then the Visa Bulletin lists that combination as “current.” All applicants matching that combination may file a registration or adjustment of status application regardless of their priority date.

When there are insufficient visas available for all known applicants of a specific combination, then the Visa Bulletin lists a cut-off date. Only those applicants who have priority dates earlier than the cut-off date may file an application.

Sometimes, a cut-off date may retrogress, meaning that fewer visas are available than previously projected. When that happens to an applicant whose registration or adjustment of status application has already been filed, the applicant is forced to wait until the cut-off date, again, progresses past his priority date for his application to be adjudicated.


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Portability of the Non-Immigrant Alien Petition and Labor Certificates

Before 2000, a worker had to remain with his sponsoring employer until his registration or adjustment of status application was approved because the petition's approval was entirely contingent on the worker staying with the same employer. Under the statutory scheme, both the labor certificate and the immigrant worker petition belonged to the employer.

The employer is the petitioner for the immigrant alien petition; the worker is considered the petition's beneficiary. 8 U.S.C. § 1154(a)(1)(F), states that “[a]ny employer desiring and intending 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 C.F.R. § 204.5 refers to the employer as “petitioner” and the worker as “beneficiary.”

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act (AC21), which amended the Immigration and Nationality Act (INA) with respect to nonimmigrant alien workers. The AC21's goal was to help employers retain the skilled workers necessary for the technological revolution.

The AC21 added INA §§ 204(j) and 212(a)(5)(A)(iv). Those provisions made immigrant alien worker petitions and labor certifications portable to new employers for long-delayed applicants for adjustment of status applications.

A petition under subsection (a)(1)(D) of this section for an individual whose application for adjustment of status has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job, if the individual changes jobs or employers of the new job is in the same or a similar occupational classification as the job for which the petition was filed.

The AC21's portability provision for labor certificates is very similar. Under the AC21, a worker no longer has to remain with his sponsoring employer until his or her registration or adjustment of status application is approved. Instead, the worker's new employer can use the previous employer's labor certification and immigrant worker petition to hire the worker.

Under this process, the employer is said to “port” the new employee. This portability feature is available as long as the new job is in the same or similar occupational classification as the previous job.


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Classifications on the Alien Worker Form

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

  • Alien of Extraordinary Ability
  • Outstanding Professor or Researcher
  • Multinational Executive or Manager
  • Member of Professions with Advanced Degree/Exceptional Ability
  • Skilled Worker
  • Professional
  • Other Worker

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Additional Resources

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


This article was last updated on Friday, January 26, 2018.

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