Green Card Labor

Question:

My company is sponsoring me for my green card. My application for labor certification has been stuck for over a year. I heard that sending a letter to the Senator of the State where my application was filed could help speed up the process. Does anyone know anything about that?

Answer:

Depending on where and how you filed, it can take substantially longer than a year (mine took three years. That was a regular process LC in California).

If it has indeed been pending for an unusually long time, then your Senator or, preferably, Representative can indeed inquire and help you figure out what is wrong. On the other hand, if this is the normal processing time, there is nothing he could do.

Would you also happen to know when during the green card obtention process I can change job without risking the whole process. I heard that it was 6 months after approval of the I140. Is that correct?

Almost. It is actually six months after you filed the I-485 - which usually is very soon after the I-140 is approved. If the I-485 is filed concurrently with the I-140, it could be even before the I-140 is approved.

What are each of the I-140 and I-485 used for respectively? Do I need to have my labor certificate approved before I file for the I-485? Or can I file for the I-485 while my labor certification is pending? Also, can I file the I-485 and the I-140 concurrently in any instance?

The INS has just recently began accepting i140 and i485 conncurrent applications.. so this should (in most cases) speed up the process.

With the I-140, the employer asks INS to classify the person in an employment-based category for immigration. The approved labor certification is required for this classification (unless the requested I-140 category is labor-cert exempt -- see http://www.americanlaw.com/employ.html).

With the I-485, an individual asks INS to "adjust" (this is a technical term used *only* for this process in U.S. immigration) status from temporary to permanent status within the U.S. The filing of Form I-485 must be based on an approved, or in some cases filed, immigrant petition such as an I-130 or I-140.

In effect, yes. It is actually required for the I-140, and the I-140 filing is required so that the I-485 can be filed. The labor cert is not tied directly to the I-485.

No, unless your employer is able to file simultaneously an I-140 in another category which does not happen to require labor certification, and if they could do that, they would probably already have done that.

Sylvia already gave you a great answer. In a different thread, she also corrected something wrong I told you. In order to take advantage of AC21 (and change jobs after six months), two conditions need to be met. First, the I-485 must be pending and take at least six months. Second, the I-140 must be approved.

When filing both concurrently, the I-140 is approved the same day as the I-485.

That means that, contrary to what I told you, in concurrent filing you CANNOT change jobs before approval.

What about if you're laid off and it hasn't been pending for six months??? Does all that work and waiting go to waste?

On a related note, when does the 6 months before you can change jobs start in the case of consular processing - from the date of approval of the I-140 ? Also, what is a "typical" time between approval of the petition and an interview appointment at a consulate ?

The six months don't apply at all in case of consular filing. It is ONLY available if you go the I-485 route.

INS hasn't issued regulations about that yet, but some lawyers are saying that you can still use AC21. Note the phrase I used (which is essentially the same as what the law says): not "you can change jobs six months after the I-485 is filed" but rather "you can change jobs as long as the I-485 takes more than six months to process".

In other words - and, again, this is an unsubstantiated opinion that some lawyers have but INS hasn't ruled on yet - if you lose your job after two months, find a new one immediately, and the I-485 takes a year to process, you are safe. On the other hand, if INS by some strange coincidence approves your I-485 after only four months, you having given up the job would have been deadly. I admit that this is a very strange outcome, but that's what the law seems to suggest.