Uscis Application Status

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There are a variety of processing avenues to obtain permanent resident (Green Card) status. Generally, the
process involves a petition to USCIS by an employer and an Immigrant Visa application, or Adjustment of
Status Application filed by the employee.

Employment-based permanent immigration is subdivided into five “preference classes” each with its own
quota. Some “preference classes” require an approved Labor Certificate (“Certificate”) from the U.S.
Department of Labor as evidence that there are no U.S. workers who are available and qualified for the
position. (For additional information, please see our “PERM Overview”.) “Priority” workers, including
qualified multinational managers, do not require a Certificate.

General Requirements
Generally, a U.S. based employer must “petition” to the USCIS for the employment of a foreign national.
The employer must have a bona fide intention to permanently employ the beneficiary upon approval of
permanent resident status. In addition, the employer must sufficiently describe the proposed duties and
explain how the beneficiary qualifies for the requested occupational “preference class.” In certain cases
(involving multinational managers), the employer must also provide evidence of its qualifying relationship
to the beneficiary’s foreign employer.

Please note that the U.S. employer must provide evidence of its financial status, including copies of at least
one of the following: (1) Annual Reports; (2) Audited Financial Statements; and/or (3) U.S. Federal Tax
Returns. The U.S. employer must also be able to demonstrate its ability to pay the proffered wage by
providing evidence that the U.S. employer’s net income and/or net assets are greater than the beneficiary’s
offered wage. Alternative evidence may be suitable in limited circumstances.

In limited cases, individuals may self-petition without the support of an employer.

Special Requirements for Skilled Workers, Professional and Other Workers
Nearly all petitions for these workers will first require a Certificate from the U.S. Department of Labor
before the U.S. employer can file the petition with the USCIS.

Special Requirements for Multinational Executives and Managers
A Certificate is not required for this occupational class. However, in order to qualify as a multinational
manager, certain requirements must be met. First, there must be a qualifying relationship between the
corporate entities in the U.S. and abroad. As defined by the relevant regulations, the U.S. and foreign
companies should have a parent, subsidiary, affiliate or branch relationship. With respect to the employee
being transferred, s/he must have worked in a managerial role for the foreign affiliate, parent, subsidiary or
branch office for at least one continuous year in the past three immediately before entering the U.S., and
s/he must be coming to the U.S. to take on responsibilities as a multinational manager or executive.

For a role to qualify as multinational managerial or executive, the role should include responsibilities that
require the employee to:
    1.       exercise discretionary authority to oversee a function, division or department of the
             organization with only minimal oversight from superiors;
    2.       exercise discretionary authority over a budget;
    3.       supervise and control the work of other supervisory, professional or managerial employees;
    4.       have authority to manage employee matters (such as hiring, firing, promotions, discipline and
             other matters).

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Note that first-line supervisors are not generally considered multinational managers, but there are some
exceptions to this rule.

Processing the Petition
The petition and supporting documentation are submitted to the USCIS for processing. The beneficiary
may obtain lawful permanent residence by either filing an I-485 (“Adjustment of Status”) or applying for
an immigrant visa from a U.S. consulate abroad (“Consular Process”). There are distinct advantages to
each method.

    1.       Adjustment of Status

An application for Adjustment of Status is wholly-adjudicated by the USCIS from within the U.S.
Applicants may wish to Adjust Status because of the benefit from provisions which permit family members
of the primary beneficiary to obtain an EAD while the I-485 remains pending. Furthermore, in some cases,
applicants for Adjustment of Status may be eligible to change the underlying employer of the I-140
petition, if the I-485 application has been pending for more than 180 days. The ability to change employers
“mid-stream” could be beneficial in certain cases where there is an unanticipated change of corporate
ownership or structure. Finally, applicants in certain preference classes and from certain countries may be
subject to visa retrogression, and Adjusting Status might be the safest option to ensure the applicant is
permitted to continue employment in the U.S. while processing is completed. The primary disadvantage of
seeking to Adjust Status is that USCIS application processing, including security clearance procedures,
may experience significant fluctuations in processing times. In a very limited number of cases, the
application may be delayed for months, or even years, pending the outcome of these mandatory security
clearance checks.

    2.       Consular Process

With Consular Processing, once the USCIS approves the I-140 employment-based petition, the petition
approval is forwarded to the U.S. National Visa Center (“NVC”) which is operated by the U.S. Department
of State. The NVC will collect immigrant visa fees and biographical information about the primary
beneficiary and all accompanying family members. Depending on the consulate, applicants may also be
required to submit original or government-certified birth certificates, marriage certificates, divorce decrees
and custody agreements, as well as police certificates and other vital documents. Once the NVC has
collected all of the required information and documents, the file will be forwarded to the U.S. Consulate for
interview scheduling. Normally, the applicant will be required to complete processing in the country of his
or her citizenship. Once the interview is scheduled, the applicants will be required to complete medical
exams and attend an interview. If not previously provided to the NVC, applicants will be required to
provide original documents including birth and marriage certificates and police clearance certificates at the
interview. Immigrant visas are generally issued within a few days of the interview. Please note that
specific visa processing practices may vary between consulates. Once the immigrant visas are issued, the
applicants must enter the U.S. during the validity of the immigrant visa, normally 6 months from the date of
issuance. Upon subsequent entry, the U.S. Customs and Border Protection (“CBP”) officer will inspect the
immigrant visas and other related documents, and barring any unforeseen circumstances, the CBP officer
will admit the individuals to the U.S. in U.S. Permanent Resident status with temporary evidence of status
valid for 6 months. Documentary evidence of permanent status (“green cards”) will be sent to the
individual by mail within 1-6 months.

While awaiting the consular interview, the applicant must maintain valid non-immigrant status, such as H-
1B or L-1B, in order to be able to work in the U.S. Also, unlike with the Adjustment of Status process,
applicants completing Consular Processing must continue to be intending to be employed in a job that is
identical to the job described in the I-140 petition. On the other hand, although applicants for Consular
Processing are also required to complete security clearance checks, the longest delays using Consular
Processing are rarely as lengthy compared with the longest delays using Adjustment of Status.

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Finally, please recall that whether you are applying by Adjustment of Status or Consular Processing, your
application cannot be approved unless a visa number is available.

Obligations of Permanent Residents
Once an individual has obtained permanent residence, s/he will face certain obligations and responsibilities
in order to maintain status. For additional information, please refer to our “Maintaining U.S. Permanent
Residence and Re-entry Permits Overview”.


Any questions or concerns can be addressed by:

JAMES P. EGAN, Partner                                GEORGE REIS, Partner
Direct Line: (416) 943-2533                           Direct Line: (416) 943-2535
Internet:                        Internet:

Updated: June 27, 2007

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