Once the Application for Labor Certification (PERM) is approved, the employer files the following items with the Immigration and Naturalization Service: the approved application, an Immigrant Petition for Alien Worker on USCIS Form I-140, and supporting documentation establishing the foreign national's qualifications and the employer's ability to pay the offered salary.
At the same time that the I-140 immigrant petition is filed, the foreign national may file an I-485 Application to Adjust Status to Permanent Residence with the USCIS, if eligible to do so. Whether the foreign national is eligible to file the I-485 Application at the same time as the I-140 Immigrant Petition will depend on factors such as whether the foreign national has not been in the United States illegally, or engaging in unauthorized employment, for more than 180 days.
The foreign national will also need to have a current immigrant visa priority date in order to be eligible to adjust status. The foreign national’s immigrant visa priority date is established on the date that the Application for Labor Certification is filed with the U.S. Department of Labor. In addition, depending on the employer’s minimum qualifications for the position when filing the Application for Labor Certification, the I-140 Immigrant Petition for this type of case will usually be classified as EB-2 (Employment-Based Second Priority) or EB-3 (Employment-Based Third Priority).
Whether the foreign national’s case is classified as EB-2 or EB-3, and whether the foreign national is from certain countries (such as India or China) will determine whether the visa priority date is current, and the I-485 Application can be filed immediately, or whether there will be a waiting period, and how long that waiting period will be, between the date that the employer’s I-140 Immigrant Petition is filed and the date that the foreign national’s I-485 Application can also be filed.
Visa priority dates are updated on a monthly basis by the U.S. Department of State in its monthly Visa Bulletins.
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