Frequently Asked Questions about Adjustment of Status

Q: An immigrant petition had been approved on my behalf a long time ago. Should I expect the USCIS to send me instructions on how and when to file for an adjustment?

A: No. The system is not designed that way. It is up to the prospective immigrant to watch the “visa line” and initiate the adjustment process once his or her visa becomes current.

Q: What is CIS or USCIS?

A: CIS, or more officially U.S. Citizenship and Immigration Services, is the branch of the U.S. Department of Homeland Security responsible for most of the matters concerned with the status of foreigners in the United States.

Q: My uncle filed a family petition for my mom. It was many years ago and it seems that my mom can now file for a green card. May I file with her as a derivative beneficiary?

A: Generally speaking, yes, provided that you are still unmarried and younger than 21 years old.

Q: Do I need to obtain a criminal record certificate from my home country to file for adjustment of status?

A: No. The CIS performs its own security and criminal records search.

Q: My daughter has just recently become U.S. citizen and wants to sponsor me for a green card. Do we need to file the family petition first or can we file both the family and adjustment petition together?

A: As an immediate family member of your now U.S. citizen daughter, you may file the I-130 family petition together with the I-485 adjustment application.

Q: I came to the U.S. as a holder of a K visa (fiancé), but I married a different person than the one who filed for my K visa. Can I file for adjustment of status?

A: No. To be eligible for adjustment, the K visa holder must marry the K visa sponsor within 90 days of arrival to the United States.

Q: My wife is a U.S. citizen and wants to file on my behalf, but she has been unemployed for quite some time now. Can we file now or should we wait until our financial situation improves?

A: Your wife must execute an Affidavit of Support regardless of her current financial situation. If you are married and live together, your income, if you are employed, will be counted towards the required income minimum. Should your combined income prove inadequate under the federal guidelines, you will need to secure an affidavit from a third person who must be either a U.S. citizen or U.S. permanent resident.

Q: I entered the United States using somebody else’s passport. Now. I am married to a U.S. citizen. Can I apply for adjustment of status?

A: Your entry was clearly illegal and you committed an immigration fraud. Regardless, you still may have a chance to legalize. You will need to prove your entry (that it was you who entered on that passport) and you must qualify and obtain a special permission to legalize, i.e., a waiver.

Q: I was arrested for shoplifting. I am now married and my husband is unsure whether we should even risk filling for my green card.

A: It all depends on the type of conviction in your case and any prior problems with the criminal justice system. Generally, one minor offense, even if classified as a misdemeanor, should not bar you from applying for adjustment.

Q: I came to the U.S. as a visitor with a B-2 visa. My authorized stay expired more than a year ago. Can I file for adjustment through my employer?

A: No. To adjust in any of the employment-based categories, you must be in the U.S. with a valid status unless you qualify under Section 245(i).

Q: My employer is sponsoring me for a green card. The I-140 is already approved. Can my parents apply with me?

A: No. Parents are not entitled to derivative status. Only your spouse and minor children (unmarried and younger than 21 years old) can apply with you.

Frequently Asked Questions about Family-Sponsored Immigration

Q: My wife and I have been living in the U.S. for many years now. We do not have legal status but we have a son who is now 16 years old and was born in the U.S. Can our son sponsor us?

A: No, or better, not yet. He will be able to petition for both of his parents the day he turns 21.

Q: I am a U.S. permanent resident. Can I file for my parents?

A: No. The current law does not allow for that. You must become a citizen to be able to petition for your parents.

Q: I am a U.S. citizen. Can I petition for my half-sister?

A: It depends. The immigration law uses the term “sibling” to denote brothers, sisters, stepbrothers, stepsisters, and adopted brothers and sisters. The “siblings” must share at least one common biological parent and the relationship must be created before the age of 18 (stepchild) or 16 (adoption).

Q: My mother recently became naturalized. Does she need to file separate petitions on my behalf, my wife, and my two daughters?

A: No. She will need to file only one petition on your behalf. Your family will be able to immigrate as derivative beneficiaries.

Q: Will I be able to travel overseas while waiting for adjustment interview?

A: Yes. It is no secret that it takes a long time to complete the green card processing even by the way of the adjustment of status. One may, however, apply for a special permission named Advanced Parole, which allows for brief travel and return while the adjustment of status is pending. The Advance Parole should not, however, be used to travel by those who overstayed their visas for more than 180 days as they may be regarded as inadmissible at the time of their adjustment interview even if they were “legally” allowed to return to the U.S. (one of the many common-sense defying realities of the current system).

Q: I am a U.S. citizen but have been unemployed for quite some time now. Do I need to file an Affidavit of Support on behalf my wife?

A: Yes. You must execute an Affidavit of Support on behalf your wife regardless of your current income situation. To overcome the public charge issue, you will need a co-sponsor or provide evidence of sufficient and most of all readily available (liquid) assets that can be used to guarantee financial support of your wife. Your wife’s income may also be included in your total household income.

Q: What is the income requirement of a sponsor?

A: Each sponsor, be it the petitioner or any selected co-sponsor, must meet the 125% level of the poverty guidelines published for each year by the U.S. Department of Health & Human Services. For 2012, the minimum income for a family of four was $28,812. The intending immigrant is counted as an additional family member for the purpose of calculation.

Frequently Asked Questions about Employment-Based Immigration

Q: Who may initiate the PERM process?

A: A U.S. employer is the initiator and the controlling party during the PERM process. The foreign national assumes a passive role as only a beneficiary of the application filed on his or her behalf.

Q: What is the role of the U.S. employer during the application preparation and processing?

A: The retained attorney usually does most of the application processing tasks. However, some of the necessary steps, like registering the company with the DOL for the purpose of electronic filing, must be handled by the employer directly and may not be delegated to the retained counsel. The same hands-on requirement refers to conducting telephone or in-person interviews with qualified candidates. In reality and somewhat despite the attorney’s leading role in the process, the employer (as it seems to be always the best practice) should verify accuracy and approve any major steps in the process such as proposed job description, conditions of employment, job advertisement, or the final recruitment report.

Q: What are the filing fees for PERM application?

A: There are currently no fees for PERM applications.

Q: How long does the PERM application take?

A: In theory, it could take as few as 60 days to file the application (30 days for the mandatory advertisement, posting, and job order placement and another minimum of 30 days for candidate consideration) plus another couple of weeks to receive the approval. In reality, it takes several months from the first official step (request for wage determination) to the application approval. The actual time of processing depends much less on good efforts by the employer and the attorney than on the processing delays in wage determination and later in the decision making.

Q: How long is the approved labor certification valid?

A: Once approved, the labor certification is valid for 180 days. Any I-140 preference petition must be filed within the validity of the certification. The good news is that once the certification is filed before its “expiration date,” its validity for the approved position is maintained indefinitely even if the accompanying I-140 petition is later denied.

Q: My employer started the application process on behalf another employee who is no longer with our company. Can the employer transfer the application to sponsor another employee for the same position?

A: It depends on how far along the application process is. One of the reasons the new PERM process was instituted in 2005 was to significantly shorten the application processing and make the prevailing practice of substituting beneficiaries unnecessary. It is still possible to substitute beneficiaries as long as the application is not filed or to file a second one (after withdrawing the first one) for a newly named beneficiary. This quasi-substitution can be accomplished provided that the second application is within the filing time limits. Once approved, the application is not transferable.

Q: Do I have to work for the sponsoring employer during the whole time the application is processed?

A: There is no legal obligation to work for the sponsoring U.S. employer until the actual green card status is granted. It is important to understand that the filing of the application constitutes an offer, and only an offer, of future employment according to the terms set and is conditional depending on a future and uncertain event, i.e., granting of the permanent resident status by the U.S. government.

Q: Can I work legally in the U.S. while the PERM application is pending?

A: Filing of the application by a prospective U.S. employer does not create any legal basis for authorized employment of a foreign worker. Many beneficiaries legally work in the U.S. during the PERM processing, but their right to accept employment is based on a separate grounds, for example, H-1B temporary worker status.

Q: Can I legally work for the petitioning employer once the certification is approved?

A: No. An approved application for labor certification does not create by itself the right to legal employment in the U.S. The certification serves only as a legal foundation for the employment preference application and finally the application to legalize status or obtain an immigrant visa.

Q: What is the difference between a labor certification and a work permit?

A: A labor certification is basically a permission issued by the U.S. Department of Labor that allows for permanent employment of foreign nationals by the petitioning U.S. employer. The labor certification does not confer any work right directly to a foreign worker but creates the basis for any future green card application. A work permit or Employment Authorization Document (EAD), on the other hand, is a permission issued by the USCIS that allows temporary employment, mostly during pendency of certain applications for immigration benefits such as an application to adjust status.

Q: I have heard that the labor certification is complex and time consuming. Can you obtain a green card without going through the labor certification procedure?

A: Unfortunately, obtaining a green card through an offer of permanent employment usually requires filing an application for labor certification. There are only a few exception: aliens with extraordinary ability (EB-1A), outstanding researchers or professors (EB-1B), multinational executives or managerial transferees (EB-1C), employment based applicants awarded national interest waiver, religious workers (EB-4), immigrant investors (EB-5) or two Schedule A pre-certified occupations, i.e., a registered nurse and a college-trained physical therapist .

Q: What is the best occupation or position for a labor certification application?

A: Any occupation or position may be certified as long as the employer attests to its need for a new hire and is able to document the labor market shortage through the prescribed method of employment recruitment.

Q: Is part-time employment sufficient to file labor certification?

A: No. For the purpose of labor certification the position must be full time, i.e., not less than 35 hours per week. It is also worth remembering that the procedure does not require that the actual employment take place during the pendency of the application or later until the actual green card is approved.

Q: The company I work for has gone through some rough times recently. It did not declare any profit for the past couple of years. Is this company still able to qualify as a viable sponsor under current rules?

A: Yes. There is no requirement in law that the sponsoring employer is profitable. The employer must, however, demonstrate its ability to pay the proffered wage at the time the application was filed. The wage-paying ability must be maintained until the sponsored worker becomes a U.S. permanent resident. The employer’s ability to pay the prevailing wage may, for example, be demonstrated by presenting the company’s financials and showing that the company’s current assets are higher than the proffered wage or, if you work for the company, that the employer actually paid you compensation equal or higher than the declared wage.

Q: Who makes determination about the prevailing wage?

A: Beginning of January 2010, the prevailing wage is obtained from a specialized unit of the U.S. Department of Labor known as the National Prevailing Wage Center (NPWC) with offices located right in Washington D.C. The application is submitted on line. There are several large national wage database and periodically published wage surveys. The most relied upon by the NPWC is the Occupational Employment Statistics (OES) survey.

Q: My employer is refusing to accept the prevailing wage determination. What, if anything, can be done at this point?

A: If an employer disagrees with the NPWC wage determination and refuses to accept the NPWC figure as the basis for application, it can submit its own wage estimate based on some other wage data source and ask to include such survey as the basis for application. If denied, the employer can appeal the decision to the Board of Alien Labor Certification Appeals.

Q: Is the employer required to disclose the established prevailing wage rate in the advertisement?

A: No. The established wage rate does not need to be mentioned in the advertisement.

Q: Can we include foreign-language proficiency as part of the minimum job requirements?

A: The requirement of foreign-language proficiency is always regarded by DOL with suspicion and usually raises a red flag that leads to an audit. Foreign-language proficiency may, of course, be included if justified by a well-articulated business necessity argument or if the ability to speak, read, and write in a foreign language is the obvious part of the job duties, i.e., a foreign language teacher, tourist guide, translator, etc.

Q: What is a typical cost of PERM job advertisement?

A: The cost varies. In large metropolitan areas, newspaper ad rates are usually higher than in rural areas or smaller aglomerations. The overall cost also depends on whether the job must be advertised according to the more stringent rules required for professional positions. Usually the higher the job category, the higher the overall cost of the recruitment campaingn. The costs vary between a few hunded dollars to well over a thousand dollars or more for professional occupations advertised in places like New York City.

Q: What is a professional position?

A: Typically, all positions that require a minimum of four years of college-level education (Bachelor’s Degree) are considered to be professional in nature. PERM regulations are more demanding towards professional positions and demand additional recruitment steps.

Q: My U.S. citizen sister filed a family-based petition on my behalf. The petition was approved, but I was told that the immigrant visa in my category would most likely be unavailable for many years to come. Can my employer file the labor certification application on my behalf?

A: Yes. Filing of a family petition or even an employment-based application by a different employer has no consequences on the validity of any future employment-based applications or family-based applications. As long as you qualify and can afford it financially, it is prudent to seek legalization on as many basis as possible to improve your chances of success or take advantage of shorter visa queue.

Q: At what stage of PERM processing does one get assigned the priority date?

A: The priority date is automatically assigned to each PERM case the day a complete application is filed.

Q: Why priority dates matters?

A: The priority date establishes the applicant’s position in the visa availability line. Each month, Visa Bulletin, the publication of U.S. Department of State, establishes cut-off dates for every immigrant category. The priority dates falling after the newly established cut-off dates allow filing only for available immigrant visa numbers.

Q: Two years ago my employer filed a labor certification application on my behalf. The application was approved but visa numbers were not available in my category for a long time. Now it seems that days of the business are numbered. Will I be able to transfer my approved application to a different employer?

A: If your current employer filed the I-140 preference application and the application was approved, then you may be able to transfer the case to a new employer.