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Employment Based Immigration
Employment within the United States may pave way for immigration. Immigration law can obtain green card through employer sponsorship. Three things have to happen for this— (1) the Department of Labor (DOL) must issue an alien labor certification to the immigrant's employer, (2) the United States Citizenship and Immigration Service's (USCIS) must approve the employer's immigrant visa petition (Form I–140), and (3) the immigrant must obtain approval of her own 1–485 application for adjustment of status. The first step creates what we call it a “priority date,” which is crucial about the timing of the adjustment of status. The third step is time consuming, green card is not available unless a permanent residency visa is available. Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States. One has to have an approved labor certification and a granted I -140 petition before the adjustment could be obtained at the priority date.
To give immigrants flexibility to change jobs when there are delays in processing I-485 applications, Congress enacted what is called the “portability provision.” The portability provision states that an I-140 petition “shall remain valid” to support an immigrant's I-485 application for permanent residency even when the immigrant changes jobs if (1) the immigrant's I-485 application has been pending for 180 days or more and (2) the new job is “in the same or a similar occupational classification” as the one for which the immigrant's original employer filed the petition. It is meant to allow an immigrant to move—or “port”—to a new employer without fear that USCIS will deny his I-485 application based on the lack of an approved I-140 petition from the new employer. Also, an immigrant can request to port even if USCIS has not yet adjudicated the I-140 petition underlying his I-485 application.
The Alien Labor Certification
The intending immigrant must have a prospective employer in the United States, and that employer must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). This certification identifies the minimum education level, training, and experience required for the position and documents efforts to find an available U.S. worker. Keep in mind that Homeland Security will not process petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent. This certificate memorializes the Department's determination that (a) “there are not sufficient workers who are able, willing, qualified ... and available at the time of application ... to perform such ... labor,” and that (b) “the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. Once the Labor Department issues a labor certification, it remains valid for 180 days from date of certification. Also, the filing of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the ETA Form 9089.