In some cases, employers secure an approved labor certification application for a foreign national employee and proceed to file an Employment Based Second (EB2) or Employment Based Third (EB3) Immigrant Petition on behalf of a foreign national employee. Due to the accelerated processing times under PERM, the time period between PERM labor certification application case filing and approval is often rather short. In an increasing number of cases, the foreign national employee's priority date is not current and they are not eligible to file a permanent residence ("green card") application even after waiting for the PERM and Immigrant Petition cases to be approved. This memo addresses the steps that the foreign national can take to most effectively position the case for the future.
Let's use an example. Company files a PERM application on January 1, 2006 and U.S. Department of Labor ("DOL") approves it on March 1, 2006. Company files an EB2 Immigrant Petition on March 21, 2006 and U.S. Citizenship and Immigration Services ("CIS") approves it on October 21, 2006. The employee is a Chinese citizen.
Applying the law to the facts, the Chinese national's priority date (place in line under the quota system) was established by the filing of the PERM application on January 1, 2006. The Chinese national can see what the current "cut off" date is by looking at the U.S. Department of State ("DOS")'s monthly visa bulletin at: http://travel.state.gov/visa/frvi/bulletin/bulletin_3046.html. Each month, usually in the middle of the month, DOS posts the cut off dates for employment-based applicants. Each column, such as EB1, EB2, EB3, bears a cut off date with either a letter "C" (for current), "U" (for unavailable) or a number (meaning that only persons with priority dates on or earlier than the listed date) can apply for permanent residence for the posted month. In the above example, the Chinese citizen cannot file her permanent residence application yet since her priority date is January 1, 2006 and, as of the November 2006 Visa Bulletin only would-be applicants can file their permanent residence case if their PD is April 15, 2005 or earlier.
If your priority date is not yet current, aside from tracking the monthly bulletin as we do to identify cases that become current, you can take the following steps to position yourself for a future permanent residence filing:
You should proactively collect originals or certified copies (issued by the appropriate governmental agency) of all birth, marriage, and divorce certificates in advance for every family member who will apply. You should match these against the Foreign Affairs Manual (FAM) which state the criteria for such certificates The FAM link is in our posting. If you cannot obtain a necessary certificate or if it is unavailable, please contact us for guidance. Keep all original documents in a safe place.
If you have ever been arrested or convicted, you should be certain to notify Dinsmore & Shohl about this so it does not become a last minute surprise prior to case filing. The U.S. government forms require you to disclose all arrests and convictions even if the charge was dismissed or the conviction was expunged or the record was sealed and even if the arrest or conviction took place abroad. You would want to secure original or certified copies of all arrest, conviction and disposition records and alert us in advance since legal research as to the impact of the conviction may be necessary.
You should not obtain your sealed medical exams if your priority date is not reasonably close to being current (if your priority date is more than 3 months from being current) because medicals are only valid for one year. They must be submitted with a permanent resident case within one year of issuance. However, we do recommend that you read our vaccination information sheet and obtain records to show that you are up-to-date on your vaccinations so your ability to complete your medical exam is not delayed as a result.
You are welcome to fill out the forms on our site in advance and this may be advisable so you can locate all information that you will need later. However, please be aware that the forms change over time so you may need to update them later. You should hold onto them until requested by Dinsmore & Shohl.
If your priority date is close to becoming current, you should consult with Dinsmore & Shohl about the impact of any foreign travel on your ability to file your permanent residence application and re-enter the U.S. after such travel. Priority dates can retrogress so you generally want to file as soon as you are eligible to when your priority date becomes current and not have a trip that gets in the way in case filing (you must be physically in the U.S. to apply for adjustment of status).
We hope that this tips enable you to work with us to more quickly prepare, assemble and file your permanent residence application via adjustment of status once your priority date does become current.