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The Logistician: A Walk-Through of the Process

The Logistician

We will explore in this article the path to permanent residence for an Australian professional seeking to work in the U.S. The individual, the recipient of a Bachelor's degree in Business from a respected Australian university and an experienced Logistician, wishes to come to the United States to continue work in her field.

Professional background, offer of employment in the US

During a brief trip to the U.S. to visit a sibling attending school here, the Logistician is able to arrange an interview with a potential employer. The employer is impressed with her credentials and wishes to offer her a position - but from prior experience with the timing and availability limitations of the H-1B visa, the employer knows that there may be some practical problems making this work.

Even if a visa other than the H-1B may be available, the problem is that the Logistician's services are needed urgently. The prospect of waiting weeks or months for approval of a non-immigrant visa through US Citizenship and Immigration Services in the US, only to wait several weeks more for approval of a visa application at a U.S. consular post in Australia and the Logistician's eventual return, causes the employer to wonder if this situation will meet the company's needs.

As the Logistician would need to return home to prepare for the move and to give two weeks' notice at her current position, a change of status here to another non-immigrant visa is not an option (and in any case, she entered under the Visa Waiver program having been approved under the ESTA system, which does not permit a change to another non-immigrant status).

A workable solution

The company consults its immigration attorney, who tells the hiring manager about the E-3 visa. This non-immigrant visa is intended for professional workers such as the Logistician working in jobs which require at least a Bachelor's degree or the equivalent; in many ways it’s similar to an Australians-only version of the H-1B.

This type of visa has an advantage over the H-1B, however: speed. It can be applied for directly at the U.S. Embassy or Consulate abroad without a requirement that the application must first be processed and approved by a US Citizenship and Immigration Services office in the U.S. As we’ve never yet used up all of the 10,000 annually available E-3s, there’s no issue of waiting to go through a lottery at a particular time of year and hoping to be selected.

The E-3 application process

The company supplies the immigration attorney with the information and documents needed to begin work on the petition and the Logistician returns to Australia to prepare, faxing the few remaining documents needed from her side once there. The attorney forwards a package to the Logistician for presentation at the US consulate.

The Logistician then creates an account with the consulate’s system, pays the necessary consular fees, completes the online DS-160 form online, and makes an appointment at the Consulate nearest her home in Australia for an interview. The interviewing officer reviews and approves the petition and the Logistician's passport is returned with a Machine-Readable Visa (MRV) stamp valid for two years - the maximum time on E-2 - that the Logistician can then use to enter the U.S. to begin work.

Future plans/beginning the permanent residence process

The Logistician comes to the U.S. and begins work for the company. Eventually, the company and the Logistician agree that they both would like the arrangement to become permanent and again consult the company's lawyer. The company's immigration lawyer then informs them that the appropriate avenue through which to apply for permanent residence in this situation is through PERM Labor Certification.

Working together, the attorney and the company craft a job description and application documents. They also create and submit to the Department of Labor a request for a Prevailing wage determination which takes several months to come through. They elect to wait for this before moving forward with recruitment to ensure that they can comply with the wage requirement, and so that none of the portions of the recruitment advertising which must contain the wage (the internal posting and the state job service posting) need to be re-run.

The prevailing wage determination is ultimately issued for a wage below what has been offered to the Logistician, so nothing need be changed before beginning the recruitment process. The employer and their attorney arrange for two consecutive Sunday advertisements to be placed in the recommended print media, as well as a job posting at the work site and a job order with the State Workforce Authority in the state where the job is located to run for at least 30 consecutive days.

Because this is a professional position, there are additional requirements: the employer must undertake at least three other methods of recruitment from a list of specified possible methods (they choose to run an online ad, a local/ethnic paper ad, and an ad on the company’s own web site). They also have the option - due to the professional nature of the position - to place at least one of the print ads in a professional journal rather than a Sunday paper.

The employer contacts and interviews all applicants to determine whether they are qualified for the position, keeping extensive records. None of the applicants possess all the qualifications needed for the position, and the attorney uses the employer's records to prepare a detailed statement about the recruitment process. This statement and evidence of all of the recruitment efforts undertaken ultimately become part of a compliance record which the employer maintains, and must be assembled and in place prior to filing of the labor certification.

At the end of the recruitment process and an additional 30-day "quiet period," the PERM Labor Certification application is filed electronically. Several months later, the case is approved.

Permanent Residence later stages

Upon approval of the PERM labor certification, the attorney prepares and files the Immigrant Visa Petition with US Citizenship and Immigration Services. Since the case will be in the Third Employment-Based Preference classification and at the time this preference classification in the General category is severely backlogged (no immigrant visas are immediately available), the Application to Adjust Status to Permanent Residence is not filed along with it. This will need to wait until the priority date (the date the PERM Labor Certification application was first received by the Department of Labor) becomes current - likely quite some time after approval of the Immigrant Visa Petition.

The Immigrant Visa Petition is ultimately approved some months later, and the Logistician, employer and attorney all continue to wait for the priority date of the application to become current for the Third Employment-Based preference class, knowing that there is really no way to determine exactly how long this will take. They will all simply need to keep checking monthly updates to the Department of State's Visa Bulletin web site in order to see whether the cutoff date has advanced to the priority date of the petition. Fortunately, with very few exceptions, there is no limit on the number of times an E-3 can be extended - so there is unlikely to be a problem remaining in the US and continuing to work while waiting.

During the wait, the Logistician has another question for the company's immigration attorney: she has become involved in a serious relationship with a U.S. citizen, and wishes to know if the process will go faster if she and her significant other decide to get married.

The attorney explains that a case based on marriage to a U.S. citizen would permit filing of the immigrant visa petition and the application to Adjust Status simultaneously - this type of case would not be subject to a backlog in immigrant visa availability. It will almost certainly take less time to obtain permanent residence by using this pathway.

However, the attorney advises that marriage is a serious legal (as well as personal) commitment. While a marriage-based filing is advantageous if the couple is planning to get married in any event, marriage should not be entered into for immigration purposes alone. After serious discussion, the Logistician and her significant other decide to hold off on marriage - at least for the time being.

Eventually, the date for which immigrant visas are listed as available on the State Department web site advances to a date after the Logistician’s priority date. Her Application to Adjust Status to Permanent Residence is filed and, ultimately, approved.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.