US Immigration Basics
William D. Fong

William D. Fong, is Board Certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization.  He has been named as a “Texas Super Lawyer” by Texas Monthly and “Houston’s Best Lawyers” by  Texas Magazine.   Mr. Fong is an adjunct professor at the Thurgood Marshall School of Law teaching employment-based and family-based immigration law.  Fong & Associates clients include Fortune 500 companies, utility companies, hospitals, international businesses, universities and colleges, non-profit organizations, small businesses and individuals.  The firm has offices are in Houston and the Woodlands, Texas. For more information, visit www.Fonglegal.com.

Family Based Petition
Application for Permanent Residence

The Petition for Alien Relative and Application for Permanent Residence is the process to get permanent residence for close relatives of U.S. citizens and U.S. permanent residents.

Relatives that Qualify for the Permanent Residence Petition

  1.  Immediate Relatives. Relatives of U.S. citizens are immediate relatives if they are spouses, children under 21,
       or parents of the U.S. citizen. There is no wait to file for IR visas.
  2.  Preference System. Other relatives are classified under the preference system.

1st Preference: Unmarried sons and daughters (over 21) of a U.S. citizen.

2nd Preference: [2A] Spouses and children (under 21) of a permanent resident.
[2B] Unmarried sons and daughter (over 21) of a permanent resident.

3rd Preference: Married sons and daughters (over 21) of a U.S. citizen.

4th Preference: Brothers and sisters of a U.S. citizen.

Step 1. Immigrant Visa Petition
The immigrant visa petition for an alien relative can be filed at any time. The Petitioner must show proof of U.S. citizenship or permanent residence and documentary evidence of the qualifying relationship to the Beneficiary. If the relative being sponsored is an immediate relative and is in the U.S., the relative petition and the Application for Permanent Residence can be filed together.

Step 2. Application for Permanent Residence
After the Relative Petition is approved, the Application for Permanent Residence can be filed if visas are available. Visas are always available for immediate relatives of U.S. citizens. Beneficiary's under the preference system must wait until visas are available. The date of filing the petition establishes the "priority date" which is the Beneficiary's place in line for their visa. Please contact our office for the current visa bulletin and visa availability.

At the time the Application for Permanent Residence is filed, the Beneficiary can apply for work authorization and permission to travel outside the U.S. while the application is processing.

Marriage: If the relative petition is based on marriage, at the time of the interview, if the Petitioner and Beneficiary have been married less than two years, the INS will grant the Beneficiary conditional permanent residence. The Beneficiary must file a petition to remove the conditions two years after the conditional permanent residence is granted.


Relative Petition
Application for Permanent Residence Document List

Petitioner

* U.S. passport, Naturalization Certificate or Permanent Resident Card
* Birth Certificate or Certificate of Unavailability
* Marriage Certificate and Divorce Decree(s)
* G-325 Biographic Information
* I-864 Affidavit of Support
* Income Tax printout for past 3 years
* Job verification letter
* Evidence of marriage (wedding photos, insurance policies, accounts in both names)
* Photo (1)

Beneficiary

* Passport (current and expired)
* I-94 Card
* CIS Approval Notices and Employment Authorization Card (1-797,1-20, EAD)
* Birth Certificate or Certificate of Unavailability
* Marriage Certificate and/or Divorce Decree(s)
* G-325 Biographic Information
* Medical Examination
* Photos (6): 1 for I-130, 2 for 1-485, 2 for Parole Document, and 1 for the file.

Employment Based Immigration

The Immigration Act of 1990 (IMMACT 90) created five employment based preference categories for permanent residence. The five employment based immigration categories are as follows:

1st Preference: Priority Worker

    EB-1(1)    Aliens of extraordinary ability
    EB-1(2)    Outstanding professors and researchers
    EB-1(3)    International executives and managers

2nd Preference: Professional with Advanced Degrees and Alien of Exceptional Ability

    EB-2(1)    Professionals holding advanced degrees
    EB-2(2)    Aliens of exceptional ability

3rd Preference: Skilled Worker

    EB-3(1)    Job requiring a minimum of 2 years of training, education, or experience
    EB-3(2)    Job requiring a minimum of a bachelor's degree
    EW        Job requiring less than 2 years of training, education, or experience

4th Preference: Special Immigrant

    EB-4        Religious occupation

5th Preference: Investor

    EB-5        Employment creation investor ($1 million dollar investor)


Some employment based preference categories require a first step generally referred to as "labor certification" by the state workforce agency and the U.S. Department of Labor. Some preference categories do not require a labor certification.

The 1st preference; 4th preference and 5th preference do not require labor certification. The 2nd preference generally requires labor certification unless a "national interest waiver" is approved by the CIS. The 3rd preference requires labor certification; there is no waiver of the labor certification requirement.



Employment Based Immigration

This is a summary of the procedures for a U.S. employer to petition an alien for U.S. permanent residence. There are three steps required for most employment-based immigration: (1) labor certification; (2) immigrant visa petition; and (3) application for permanent residence by adjustment of status or consular processing. These steps are for positions that require labor certification. Preference categories that do not require labor certification start at the Immigrant Visa Petition (Step 2).

Step 1. Labor Certification
Prevailing Wage Determination. PERM Employment-Based Immigrant Worker petition prevailing wage determinations are obtained from the State Workforce Agency. In Texas, it is the Texas Workforce Commission (TWC). Employers must pay 100% of the prevailing wage at the time Permanent Residence is approved. A four-tier wage scale will be implemented.

PERM requires an employer to conduct a recruitment campaign for six months prior to filing the labor certification with the Department of Labor (DOL). Applications will be screened and certified (approved), denied, or selected for audit.

Basic (non-professional) Positions require a job order and a prevailing wage determination from the State Workforce Agency, two Sunday newspaper ads, and a job posting at the job site.

Professional Positions require a job order placement and a prevailing wage determination from the State Workforce Agency, two Sunday newspaper ads (may substitute a professional journal ad for one of the newspaper ads) and three additional recruitment activities, such as website posting, external website, journal, radio and television ads, private employment firms, campus placement recruitment, job fairs, and other recruitment efforts.

Ads do not need to include a salary but must identify the employer, job location and sufficient job description. The goal for PERM electronically filed application is for the DOL to have a determination in 45-60 days.

Note: DOL approval of the labor certification application is not work authorization. Labor certification only indicates that there are no U.S. workers willing, qualified, able, or available to perform the job.

Step 2. Immigrant Visa Petition
The next step is for the employer to file an employment based immigrant visa petition with the INS Regional Service Center having jurisdiction over the place of employment. The employer must show that they are offering the job to the alien and that they are financially able to pay the wages offered from the date of filing to the date of adjustment of status. The alien must show that he meets the education and experience qualifications required for that position as described in the labor certification application. The alien will be placed in an employment immigrant visa category (Group 2, 3 or EW) according to the education and experience required for the particular position.

    The Adjustment of Status is filed concurrently with the immigrant visa petition.

Note: The approval of an immigrant visa petition does not provide work authorization or permission to remain in the U.S. For this reason, it is important to maintain non-immigrant status if the alien intends to work in the U.S. until the priority date is current.


Step 3. Application for Permanent Residence
The application for permanent residence may be filed at the same time as the Immigrant Visa Petition. This concurrent filing is called adjustment of status. The alien's spouse and unmarried children under the age of 21may file with the alien.

If the applicant entered the U.S. legally; continuously maintained legal status in the U.S.; and has always worked with authorization, the applicant can file the application for permanent residence at the INS Regional Service Center in the U.S. If these conditions are not met but the alien was physically present in the U.S. on December 21, 2000 and a labor certification application or visa petition was filed by April 30, 2001, an additional $1,000 penalty fee, in addition to the filing fee, may be paid to allow the alien to adjust status in the United States.

Approximate processing time for this step in Texas is 24 months.

During the period between the filing of the application and the interview, applicants should generally remain in the U.S. Permission to travel can be granted if there is a business or personal matter. Any departure from U.S. without the permission of the INS will constitute an abandonment of the application. The alien will then have to remain outside the U.S. until immigrant visa processing is completed at an U.S. consular post outside the U.S.

If the alien is not eligible for adjustment of status or chooses to complete immigrant visa processing at an U.S. consular post, this should be indicated on the immigrant visa petition. Upon approval, the immigrant visa petition with the original labor certification will be sent to the National Visa Center (NVC) for registration and subsequent filing with the designated U.S. consular post in the applicant's country of citizenship or last residence abroad. Consular processing times vary from consular post to consular post and usually take at least six months depending on the backlog at that consular post.


Labor Certification
Document List

* ETA 9089
* Detailed job description
* Resume
* Educational degrees; transcripts; and educational evaluations
* Employment experience letters
* Professional licenses if applicable (health care professionals; pharmacist; etc.)
* Other documents:                                            

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