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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 INS 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 INS Service Center where the employee lives.
4. The time line for the typical process is as follows:
RIR
Labor Certification
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I-140
Immigration Visa Petition
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AOS
Adjustment Of Status
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(Filed with DOL)
6-18 Months
(DOL Regions Process times vary and slow downs are common due to work load/resource allocations by DOL).
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(Filed with INS Regional Service Center)
4-12 Months
(INS time varies based on preference petition category and geographic location).
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(Filed with INS Regions Service Centers)
8-36 Months
(INS time varies based on priority dates and workload/resource allocation by INS).
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