Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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New York, NY 10004

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Employment-Based Permanent Residence - The Stages

Q: What are the stages which an employer and foreign national employee must go through to obtain permanent residence for the employee based upon a job offer with the employer's company?

A: The employer must first petition for the employee by filing an immigrant petition - most often an I-140 Petition for Alien Worker - claiming that one of the situations specified in the statute is met. The foreign national employee must also apply either for Adjustment of Status or to process through a U.S. Embassy or Consulate abroad.

Q: What is the purpose of each of these stages, and why are they both required?

A: The purpose of the immigrant petition stage (again, normally the I-140 will be used here) is essentially to establish that a legal reason exists to grant an employment-based immigrant visa to a foreign national. It also establishes the priority date and preference classification.

The purpose of the final stage - whether handled through Adjustment of Status in the U.S. or through processing at a U.S. embassy or consulate abroad - is to establish that there is no reason NOT to grant permanent residence to the foreign national. The two processes each serve a different purpose, and both must be approved for permanent residence to be granted.

Q: Must these stages be handled one stage at a time, or can they be done together?

A: It depends upon several factors.

First, it depends whether the Adjustment of Status or the Embassy/Consular Processing path are used: processing through the U.S. embassy or consulate abroad must always be handled one stage at a time - the embassy or consulate will only begin working on the case once an immigrant visa petition is approved (in fact, the embassy or consulate will only become aware of the case once an immigrant visa has been approved).

If the Adjustment of Status process is used, there are some circumstances where both stages can file filed simultaneously. The Adjustment of Status may be filed along with the Immigrant Visa Petition if the priority date is current for the immigrant petition filed at the time of filing. See our discussion in our Priority Dates and Preference Classes FAQ.

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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.