International Office - Lawful Permanent Resident

LAWFUL PERMANENT RESIDENT (LPR or “green card”) STATUS
SECTION 1: Employment-based Immigration – General
SECTION 2: Immigrant Visa Numbers, Preferences, Priority Dates, and Backlogs
SECTION 3: Immigrant Visa Number Availability Assessment Charts

(Revised 03 SEP 2007. Reviewed 03 SEP 2007.)

[Note the “Revised” and “Reviewed” dates above. If you are reading a printed version, compare it to the current on-line version.]

The Duke International Office provides this information for members of the Duke Community. Some of the contents are specific to Duke. If you choose to share this information outside Duke, please advise readers that they need to contact the international offices at their institutions or an experienced immigration lawyer for detailed or specific information.

The Duke International Office has designed this document to give you very general information, not address the details of your specific case. Immigration is usually family-based or employment-based. This document discusses only employment-based immigration in which Duke is the employer and is filing applications and petitions for which you are the beneficiary. We strongly encourage you to contact an experienced immigration lawyer for any questions regarding family-based immigration or employment-based immigration related to another employer.

Among the first questions people ask are, “How do I have Duke sponsor me for LPR status? What is the first step?” How do I make sure I get LPR status ASAP?” ANSWER: The department chair makes the decision to sponsor foreign national employees for LPR. Your first step is to confirm that your department and the chair are willing to support you for the LPR. The length of the process depends on the route the department chooses for LPR, the availability or backlog of immigrant visa numbers, and various government the processing times. By reading this document in advance you will be better prepared to have the conversation with your department and consider the processing times.

Before we begin the FAQ we need to understand which government agencies are involved in this process.
Department of State (DOS) has the responsibility to keep an accurate accounting of the visa numbers in all preference categories for all countries. Each month DOS publishes the Visa Bulletin, which contains information on this accounting and on the visa number availability and backlogs. DOS also issues the “immigrant” visa to those who do consular processing outside the U.S. to obtain LPR status.
Department of Labor (DOL) has the responsibility to verify that granting employment-based LPR status will not take a job away from a U.S. worker. DOL does this through a Labor Certification (LC) process.
Department of Homeland Security (DHS) has the responsibility to determine preference categories for each person who applies. DHS also manages “adjustment of status” for people who wish to remain in the U.S. and change from a temporary status, such as E, F, J, H, O, or TN, to Lawful Permanent Resident (LPR) status, also called “green card” status.

	SECTION 1: Employment-based Immigration – General
1.	What does it mean to have a "green card"?
2.	I have heard about "preference" categories. What are they? What does that mean?
3.	What is the "labor certification" (LC) requirement? Does it apply to me or my circumstances?
4.	Could you give me more details on how the immigration process works and how the preference categories and labor certification fit into that process?
5.	Could you explain the employment-based preferences in more detail?
6.	Could you tell me more about labor certification and how that process works?
7.	Now I have a general understanding of the preference categories and the labor certification process. I think I have decided which preference I want to use. What do I do next?

	SECTION 2: Immigrant Visa Numbers, Preferences, Priority Dates, and Backlogs
1.	What does it mean when visa numbers are “backlogged” for a country?
2.	How do visa numbers fit into the overall immigration process?
3.	How do I file an I-485 ASAP?
4.	I have not yet begun the LPR process and I am from a “backlogged” country or preference category. What are my options?
5.	How can I file for LPR independently, without Duke’s help? How can a lawyer help me?
6.	How do I determine the general status of my case?

What does it mean to have a "green card"?

The full name is Lawful Permanent Resident (LPR) status. It is often referred to as a “green card” because one of the earliest cards that was evidence of “alien registration” in the U.S. was green. Over the years the color has ranged from blue to pink to white depending on the year of issue. The current card is multicolored with embedded holographs, microprinting, and a magnetic strip. Persons who hold LPR status may remain in the U.S. permanently and live and work wherever they wish. In general LPRs have the same rights, privileges, and responsibilities as U.S. citizens. LPRs may buy and sell property, own and operate businesses, and may be drafted into the military if a draft is in effect. A few rights, privileges, and duties belong only to U.S. citizens and do not convey to LPRs. LPRs may not vote in government elections, nor serve on juries at trials, nor hold some elected offices or government jobs.

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I have heard about "preference" categories. What are they? What does that mean?

There are four general avenues to LPR status. They are:

Family-based. Close family relationship to a U.S. citizen or LPR which qualifies in one of the family-based preferences.
Employment-based. Having education, skills, or talents that are in demand in the U.S. and that qualify in one of the employment-based or profession-related preferences.
Refugee or Asylee based. Having a well-founded fear of persecution if one returns to the home country.
Special Acts of Congress. Special laws that change or make exceptions to the standard procedures for certain persons or groups of people.

The U.S. Congress, through enactment of laws, has established “preference” assignments for and within these categories, and has set a limit of about 750,000 people who can immigrate to the U.S. each year. This total is divided among the preferences using a specific mathematical formula established by law. DOS has the responsibility to keep track of all of the preference numbers available and spaces given out each year. DOS publishes a monthly Visa Bulletin. to announce to the public the status of the immigrant visa numbers each month.

In the Visa Bulletin look especially at the first three employment-based preferences. Duke files employment-based petitions for employees that we sponsor for LPR status. Duke cannot help you with a family-based preference; a family member must file that petition for you.
Preference One is for professors, researchers, and others who are outstanding or of international renown. It also includes certain executives of international corporations. No formal Labor Certification (LC) is required due to the person’s high or exceptional standing in the field, which shows that the alien is not in competition with U.S. workers.

Preference Two is for professionals holding advanced degrees. LC is always required except for those who can prove that their work is in the national interest and that their contributions to the work are so essential and unique that they are not in competition with U.S. workers.

Preference Three includes professionals holding the bachelor’s degree or lesser degrees or certificates, such as registered nurse, technologist, information technology professional, and so on. It also includes skilled and unskilled workers who may hold no degrees or professional credentials. LC is always required.
See Q4 for details on these preferences.

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What is the "labor certification" (LC) requirement? Does it apply to me or my circumstances?

Employment-based immigration means that the alien is coming to or remaining in the U.S. to accept or continue in a “permanent” job. For all employment-based petitions, either the employer or the alien employee must show that “importing” the alien into the U.S. workforce will not have a negative effect on U.S. workers. Every employment-based LPR petition must be supported by evidence of one of the following:

Labor Certification (LC), approved by DOL, confirming that the employer has attempted to find U.S. workers to fill the job and that no U.S. worker is qualified and available.
A job that has automatic LC and is “precertified.” DOL places such jobs on its “Schedule A” list. Currently only licensed registered nurses and licensed physical therapists are on Schedule A, Group I. Schedule A, Group II are persons of national or international renown. Group II is very similar to EB-1A, extraordinary ability, and we will not discuss the nuance of difference here. See Q5 for more details on EB-1A.
Documentation showing that the alien or his/her work is so exceptional or outstanding that he/she is not in “competition” with other U.S. workers.

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Could you give me more details on how the immigration process works and how the preference categories and labor certification fit into that process?

We will focus on the process at Duke. All Duke filings must be done through the International Office. Duke Bylaws and Duke Faculty Guidelines prohibit individual faculty and Duke departments from hiring outside lawyers for these filings.

The Duke Process
Step 1. The department and the alien employee discuss the possibility of LPR sponsorship and consider the preference category that might best apply.
Step 2. The department contacts the International Office for the appropriate information packet, to be followed by an initial appointment and review of the process and further discussion of the preference categories.
Step 3. The chair of the department authorizes the International Office to move forward with an LPR filing in a specific preference category.
Step 4. The department and the alien, in consultation with International Office, assemble the necessary documents for filing.
Step 5. The International Office files the appropriate documents and notifies the department that the filing has been done.

The Overall Process with the Government. Remember that Duke International Office does filings on behalf of Duke as the “employer.”
Step 1. Labor Certification. The employer must file Form ETA-9089, "Application for Permanent Employment Certification,” with the DOL. DOL must then issue the LC approval confirming that the employer has made a bona fide search for a U.S. citizen or resident to do the job and that no qualified U.S. worker is available. The employer obtains LC for its employees; the employees cannot do this for themselves. At the time of filing the Form 9089, the alien must meet all of the qualifications for the job and usually must have obtained all of those qualifications prior to being hired in the job at Duke.

In the case of teaching faculty Duke must prove that the alien is the most qualified of all available applicants. In all other cases Duke must prove that the alien is the only qualified applicant. Registered nurses and physical therapists have automatic labor certification under Schedule A. Alternately the department and the alien employee may collect evidence to show that the LC is not required because of the extraordinary and exceptional qualifications of the alien.

Step 2. Preference Petition. The employer must file a preference petition with DHS requesting that the alien be classified in a particular preference category. Using the approved LC as a supporting document or providing evidence that the LC is not required, the employer must show that the alien employee is qualified for the job that the employer is using as the basis for the LPR sponsorship. At the time of filing the preference petition, the alien must meet all of the qualifications for the job. The alien is not permitted to file the preference petition; the employer must do that. There are two very special exceptions that permit the alien to file, EB-1A and EB-2NIW. We will discuss those below in Q5.

Step 3. Application for LPR status. The alien and the alien's spouse and children must each file an application for an immigrant visa with DOS at a U.S. consular post abroad or must file an application with DHS for adjustment of status to LPR status in the U.S. Persons who are out of status or who have worked without DHS permission are generally prohibited from filing in the U.S., and may be required to process at a consular post abroad. In some cases they may pay a very high penalty fee to adjust status in the U.S. As the penalty payment process will need the help of an experienced immigration lawyer, we will not discuss it here.

Sometimes steps can be combined so that 1 and 2, or 2 and 3, or 1, 2, and 3 can be done at the same time, depending on specific circumstances. We will discuss the combining of steps in more detail below

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Could you explain the employment-based preferences in more detail?
We will only address those preferences used at Duke. Those who wish to explore alternate avenues to LPR should contact an experienced immigration lawyer for help.

We will only address those preferences used at Duke. Those who wish to explore alternate avenues to LPR should contact an experienced immigration lawyer for help.

We are providing the text from the Immigration and Nationality Act (INA) and from Title 8 of the Code of Federal Regulations (8 CFR). The DHS officer who reviews the case must follow these federal laws and regulations in making a decision on whether someone qualifies for a particular preference. We are providing this level of detail so that you can see what is required by the law and regulations, and thus is not negotiable and not at the discretion of the officer. If you would like to explore these documents for yourself you can link to the on-line texts on the DHS web site.
In the left column click on Immigration and Nationality Act or 8 CFR or any of the other source materials.

Employment-based Preference 1 (EB-1)
EB-1A. Persons of extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who will prospectively be of substantial benefit to the United States. No job offer is required. No labor certification is required. The alien may file the petition alone, without Duke’s help, but usually Duke files the petition for Duke faculty. Those who wish to file this petition for themselves should contact an experienced immigration lawyer for help. The bar for EB-1A is extremely high, as you will see. If you are on your way to consideration for a Nobel Prize this may be the best approach for you.
The law.
INA Section 203(b)(1)(A)
(A) Aliens with extraordinary ability. - An alien is described in this subparagraph if –
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively the United States.
The regulations implementing the law.
8 CFR 204.5(h)
(h) Aliens with extraordinary ability. (1) An alien, or any person on behalf of the alien, may file an I–140 visa petition for classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics.
(2) Definition. As used in this section:
Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.
(3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three of the following: [Duke note: Just barely documenting 3 of these will not be sufficient. Duke has filed a number of these for senior faculty. DHS wants to see clear and convincing evidence of truly extraordinary ability.]
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
(4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
(5) No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

EB-1B. Outstanding researchers and professors who are internationally recognized, have had a minimum of three years of full-time experience, and have been offered a tenured or tenure track position or a long term research position comparable to tenure track at a university or research institution. A job offer is required. No labor certification is required. Duke must file the petition as the employer. The alien is not permitted to file this petition.
The law.
INA 203(b)(1)(B)
(B) Outstanding professors and researchers. -An alien is described in this subparagraph if –
(i) the alien is recognized internationally as outstanding in a specific academic area,
(ii) the alien has at least 3 years of experience in teaching or research in the academic area,
and
(iii) the alien seeks to enter the United States-
(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
(II) for a comparable position with a university or institution of higher education to conduct research in the area, or
(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
The regulations implementing the law.
8 CFR 204.5(i)
(i) Outstanding professors and researchers. (1) Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I–140 visa petition for such classification.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.
Permanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or researcher must be accompanied by:
(i) Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
(ii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and
(iii) An offer of employment from a prospective United States employer. A labor certification is not required for this classification. The offer of employment shall be in the form of a letter from:
[Duke note: Duke uses options A and B below. Private, for profit, companies often use Option C. In the Research Triangle area just a few examples of companies that might use Option C include IBM, GlaxoSmithKline, or SAS.]
(A) A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien's academic field;
(B) A United States university or institution of higher learning offering the alien a permanent research position in the alien's academic field; or
(C) A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

Employment-based preference 2 (EB-2)
EB-2. Members of the professions holding advanced degrees or aliens of exceptional ability in the sciences, arts, or business. "Advanced degree" is defined as any academic or professional degree or foreign equivalent at or above the U.S. master's degree. In some cases a baccalaureate plus five years of appropriate experience can be counted as master's degree. A job offer is required. LC is required. The LC for teaching faculty must show that the alien is the most qualified of all of the applicants. The LC for all other persons must show that the alien is the only qualified applicant and that no U.S. workers are qualified and available to fill the job. Duke must file the LC and the petition as the employer. The alien is not permitted to file the LC or the petition. Duke generally uses this preference for faculty, researchers, and staff who are young in their careers and may not qualify as EB-1A or EB-1B.
The law
INA 203(b)(2)
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.
(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) *** [Duke note: This part of the law appears in the material on EB-2(NIW) below regarding the national interest waiver of labor certification.]
(C) Determination of exceptional ability. - In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability.
The regulations implementing the law.
8 CFR 204.5(k)
(k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. (1) Any United States employer may file a petition on Form I–140 for classification of an alien under section 203(b)(2) of the Act as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien's behalf, may be the petitioner.
(2) Definitions. As used in this section: Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.
(i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
(4) Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program—(i) General. Every petition under this classification must be accompanied by an individual labor certification from the Department of Labor, by an application for Schedule A designation (if applicable), or by documentation to establish that the alien qualifies for one of the shortage occupations in the Department of Labor's Labor Market Information Pilot Program. To apply for Schedule A designation or to establish that the alien's occupation is within the Labor Market Information Program, a fully executed uncertified Form ETA–750 in duplicate must accompany the petition. The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.

EB-2 (NIW). Aliens of exceptional ability in the sciences, arts, or business and whose presence and activities in the U.S. are in the national interest. No job offer is required. A “national interest waiver” (NIW) of the labor certification applies, so no labor certification is required. The alien may file the petition alone without Duke’s help, but usually Duke files the petition for Duke jobs. Those who wish to file this petition for themselves should contact an experienced immigration lawyer for help.
The law.
INA 203(b)(2)(B)
(B)
(i) Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States. [Duke note: In short, this paragraph means that the LC requirement can be waived if that waiver would serve the national interests of the United States.]
(ii)(I) The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if- [Duke note: This part of the law basically says that physicians who have received waivers of the J-1 two-year home residence requirement to work in underserved or certain public health areas are also granted a waiver of the LC based on work that is in the national interest. Do not confuse the two “waivers.” This specific J waiver results in the LC waiver, but the LC waiver does not confer the J waiver in the other direction.]
(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest.
(II) No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 204(b), and the Attorney General may not adjust the status of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien under section 245, until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 101(a)(15)(J)), in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.
(III) Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section 204(a), or the filing of an application for adjustment of status under section 245, by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II).
(IV) The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section 203(b)(2)(B) before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section 203(b)(2)(B) except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 101(a)(15)(J)) before a visa can be issued to the alien under section 204(b) or the status of the alien is adjusted to permanent resident under section 245.
The regulations implementing the law.
8 CFR 204.5(k)(4)(ii)
(ii) Exemption from job offer. The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest. To apply for the exemption, the petitioner must submit Form ETA–750B, Statement of Qualifications of Alien, in duplicate, as well as evidence to support the claim that such exemption would be in the national interest.
[Duke note: All of the rules in the EB-2 apply to EB-2(NIW) except the requirement for an approved LC.]

Employment-based preference 3 (EB-3)
EB-3. Skilled workers, professionals, and other workers. Professionals who do not hold advanced degrees, but who hold licenses, certificates, or other professional qualifications. A job offer and a labor certification are required. Duke must file the petition. The alien is not permitted to file this petition.
The law.
INA 203(b)(3)
The regulations implementing the law.
8 CFR 204.5
EB-3 “Schedule A.” Registered nurses (RN) and physical therapists (PT) have preapproved labor certification under DOL Schedule A. DOL has determined that there is a nationwide shortage of U.S. workers in these two fields, so there is no need to file an individual LC for each alien employee. Duke must file the petition. The alien is not permitted to file this petition. The alien must hold the appropriate qualifications and licensure to practice the profession of RN or PT.

We are omitting the extensive text of the law and regulations for EB-3 other than Schedule A, but providing the references if you would like to look them up. Duke generally does not file standard EB-3 petitions as it is exceedingly difficult to show that an alien must be imported for one of these jobs. In most cases, if a job requires only a bachelor’s degree or lower, or is for a job that requires only skilled or unskilled labor, then a fair test of the labor market will show that qualified and eager U.S. workers are available to do those jobs. If U.S. workers are available, then DOL will not issue the LC, and there is no way to go forward with the LPR process

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Could you tell me more about labor certification and how that process works?

Labor certification requires Duke to do a good faith search for a U.S. worker and to prove that we cannot find a U.S. worker who is qualified and available for the job. DOL has specific rules and requirements on how we do that. Even if the job has already been advertised, we must do advertising that meets DOL requirements and we must do it within a time window that DOL sets.

In general, the filing window for teaching faculty is 18 months from the date the offer letter was written to the filing of the application on-line. Appropriate advertising must have been done before or must be done within that window. For positions that do not involve teaching, the filing window is six months from the initial advertisement until the filing of the application on-line. Failure to file within the applicable windows generally means long delays, as Duke must launch and then conclude a new round of advertising and recruitment.

In reviewing the following basic steps, remember that the Duke department must work with the International Office to do this. The alien employee cannot do this.
Step 1. The department contacts the International Office to do the initial review of the LC process and determine what advertising has already been accomplished and whether it can be used for the LC process.
Step 2. The department runs advertisements and recruits for the position following a specific DOL format. Advertising must list basic qualifications for the job. If advertising has not already been done then do not do it now to get a “head start” on the process. Talk with the International Office first. You could waste a lot of time and money by not following the DOL requirements.
Step 3. The alien collects documents to show that he/she has all of the qualifications for the job, as advertised.
Step 4. The department and the alien employee collect all of the advertising, recruiting, and qualifications evidence for review by the International Office.
Step 5. The International Office files the LC application on-line through a special DOL web page. This must be done by the International Office. It cannot be done by the department or the alien.
Step 6. DOL either approves the LC on-line and notifies the International Office or requests additional information.
Remember that the LC is only required for preference EB-2 and EB-3; not for EB-1 and not for EB-2(NIW).
Remember that registered nurses and physical therapists have Schedule A LC, so no advertising or filing is required.

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Now I have a general understanding of the preference categories and the labor certification process. I think I have decided which preference I want to use. What do I do next?

You must talk with your faculty adviser or supervisor and confirm that he/she agrees with your preference choice. If
Duke will support you for LPR status, then your faculty adviser, not you, decides which preference category to file and when to start that process. The International Office will work with you and your faculty adviser, but we must follow the process that the faculty adviser and our office determine is best for the current circumstances.

If your faculty adviser or supervisor agrees to support you for LPR then he/she must ask the chair of your department to agree to support you for LPR at the department level. The department chair must grant approval and make the request to the International Office before we can begin the process for you.

Your faculty adviser or supervisor should contact the person in your department who has been designated by the department to be the administrative liaison to the International Office. That person can help you and your faculty adviser or supervisor organize the documentation you will need and will coordinate the LC and preference petition steps with the International Office

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SECTION 2: Immigrant Visa Numbers, Preferences, Priority Dates, and Backlogs

What does it mean when visa numbers are “backlogged” for a country?

When visa numbers are “backlogged” for a country, what does that mean? I have heard that some visa numbers for certain countries sometimes become seriously backlogged for years. If I am from one of these countries and my country and/or preference is backlogged, how does it affect me?
The short answer is that when a country has used up its share of U.S. immigrant visas in a particular preference category, nationals of that country must wait their turn until a share of numbers is available to them again. The detailed answer is more complicated, so we will look at it in sections.

The information below will give you a basic understanding and refer you to more detailed documents.
IMMIGRANT VISA NUMBER
General Limitations.
United States law limits the number of people to whom the DOS and the DHS may grant immigrant visas or status in any year. The total number available in any year for the entire world is about 750,000. There are slight variations because some people, such as spouses of citizens and a few others are not subject to the limit. The government year, for this purpose, begins 01 October and ends the next 30 September.

Country Limitations.
The law requires that the available numbers be spread out across countries with a maximum of 25,620 per country. If every country used 25,620 numbers per year, the world-wide use would far exceed the total of 750,000, but many countries send very few immigrants to the U.S., so the annual limit is of little or no concern to their nationals.

Immigrant visa numbers are assigned based on country of birth, not on country of citizenship. For example, if you were born in Mexico, but you now have citizenship in Canada, you are counted against the Mexico numbers, not the Canada numbers. The law makes this distinction so that people cannot change their citizenship as a matter of convenience in order to get a better place in the immigration line. There are a few rare exceptions for children of diplomats not born in the “home” country or couples where one spouse may “cross charge” or be counted with the numbers for the country of the other spouse.

Preference Categories.
The law also requires that the numbers be spread across applications from different kinds of immigrants: family-based such as spouse, parents, and adult children; employment-based such as outstanding professors, skilled workers, and unskilled workers; and certain other special groups such as refugees. All of these avenues to immigration are called “preference categories.”

Priority dates.
The law requires that LPR status be granted in proper order based on when the person officially began the process. That official start date is the “priority date” or the order of priority in which that person’s case is considered against all other cases. For employment-based immigration, the priority date is established on the date that the LC is filed with the DOL, or is the date the I-140 immigrant petition is filed with DHS, whichever is earlier. For family-based cases the priority date is the date that the I-130 immigrant petition is filed with DHS.

Doing the Math.
When the DHS or a DOS consular post abroad has an LPR case that has been adjudicated and approved, the DHS office or the DOS consular post requests, from the DOS, specific numbers of spaces in specific preference categories. By counting these requests and applying mathematical formulas to the general limitations, the country limits, and the preference categories, the DOS estimates, each month, how many immigrant visa numbers or spaces are available in the next month for each country in each preference category. DOS sets priority dates for all countries and all preference categories based on how many spaces are left for the remainder of the year, the number of visa number request already pending, and the estimates or projections of how many more may be filed. It publishes those estimates monthly on the DOS web site in the Visa Bulletin.

Reading the Visa Bulletin.
When you read the Visa Bulletin you will see that there are two major tables, one for family-based and one for employment-based. Each table shows countries across the top and preference categories along the left side. Most of the world is included in “All Chargeability Areas…” Only those countries that have reached their overall or preference category limits are listed separately. During most of the year many employment-based preference categories are marked “C” for “current,” meaning that LPR spaces are currently and readily available for those preference categories. Some preferences are sometimes marked “U” for “unavailable,” meaning that so many applicants are waiting for these spaces that they are used up into the foreseeable future and no estimate is possible.

Visa Backlogs or Priority Date Retrogression.
You will also notice in the Visa Bulletin that many preference categories have dates. When a country sends so many immigrants in a particular year that it uses up all of the numbers available to it for that year, then the DOS and DHS must stop issuing immigrant visas or LPR status to nationals of that country. DOS considers all pending cases and makes an estimate of how many years of allowable numbers for that country that it will take to accommodate all of the pending cases. Then the “priority dates” for the relevant preference categories for that country are “retrogressed” or backlogged for the number of months or years it is estimated to take to clear the backlog. Immigrant status is then granted on a general first-filed, first-adjudicated basis until the backlog clears.

Visa number availability can move forward or backward by weeks or months or years over time. For example, in September 2005, most visa numbers for China and India were “current” or were the same as the rest of the world. In October 2005 some of the dates had moved backward by six years or more. Remember that DOS can only estimate availability in any month based on the number of requests it received in the previous month. There is no way to know how many or how few people might file petitions next month, thus changing the backlog dates.

For even more information you may want to visit the web site of NAFSA:Association of International Educators. NAFSA has published a “Practice Advisory” to help explain this situation. You may access this document at here. In the search box enter 2005-H. From the search results select the NAFSA Practice Advisory 2005-H.

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How do visa numbers fit into the overall immigration process?

Employment-based immigration is a three-step process that must be done in order.
Step 1 or Step 2 establishes your “priority date.”
Step 2 establishes your “preference category.”
Step 3 begins your “adjustment of status” process and protects your option to remain in the U.S. during the LPR process. Step 3 could also be consular processing for an immigrant visa abroad, but consular processing does not protect your option to remain in the U.S. and work.

Step 1, Labor Certification.
Labor Certification (LC) application filed with DOL. Usually the date that the LC is filed establishes your “priority date” with respect to the visa numbers. The LC process can take several months or years.

Some preference categories allow you to skip LC; they are:

EB-1A persons of extraordinary ability
EB-1B outstanding professor or researcher
EB-2 NIW persons of exceptional ability whose work is in the national interest.

Some jobs, such as registered nurse and physical therapist, are in such high demand that they are on the DOL “Schedule A” list of “precertified” jobs. These people cannot “skip” LC, but LC is automatic for them, and the employer does not have to wait for DOL to grant the LC before moving to Step 2.

The visa number backlog does not control Duke’s ability to file the LC. We can file the LC whenever we have the appropriate documents from the department to do so.

Filing the LC, or even having it approved, does not allow you to remain in the U.S. to wait for the LPR process to conclude. You must maintain lawful temporary status to remain in the U.S. and work.

Step 2, Preference Petition.
Form I-140, employment-based preference petition, filed by Duke with DHS. If Duke is not required to file the LC with DOL because you qualify in one of the exempt preference categories listed in Step 1, then the date the I-140 is filed establishes your priority date with respect to the visa numbers.

To file the I-140, Duke must package with the I-140 either an approved LC or evidence that the LC is not required per the exceptions listed in Step 1. We cannot file the I-140 alone, without these documents.

The visa number backlog does not control Duke’s ability to file the I-140. We can file the I-140 whenever we have the appropriate documents from the department and the employee to do so.

Filing the I-140, or even having it approved, does not allow you to remain in the U.S. to wait for the LPR process to conclude. You must maintain lawful temporary status to remain in the U.S. and work.

Special note for pro se filers. There are two cases in which you may file the I-140 for yourself, called a pro se filing. If you are a person of extraordinary ability (EB-1A) or a person whose work is in the national interest (EB-2 NIW), then you can collect all of the documents for yourself and do your own filing or work with your own lawyer to do so. In such cases you, not Duke, are the petitioner. We strongly recommend that you work with an experienced immigration lawyer to do such a filing.

Step 3, Adjustment of Status Application.
Form I-485, adjustment of status application, filed by you with DHS for yourself and your family members. For you to file the I-485, Duke must have the I-140 completely ready so that you can include the I-485 in the I-140 packet, or Duke must have already filed the I-140 so that you can file the I-485 and reference the I-140 that Duke has already filed.

You cannot file the I-485 properly alone; it must be accompanied by Duke’s I-140 or by evidence that Duke has already filed the I-140. At this writing, the I-485 can be filed even though the I-140 is still pending and has not yet been approved. DHS has indicated that it may attempt to promulgate regulations that would require that the I-140 be approved before the I-485 can be filed.

Unlike the LC and the I-140, the visa number backlog absolutely controls your ability to file the I-485. You are only permitted to file the I-485 during a time when immigrant visa numbers are current and available for your country and your particular preference category, or when the priority date has been reached for your country and preference category. For example, if the visa numbers are current for your country and preference in September, you can file the I-485 before the end of September. If they become backlogged in October, you are not permitted to file the I-485 until your priority date is reached, which could take years.

Filing the I-485 and having it accepted by and pending with DHS allows you to remain in the U.S. If your temporary status expires, you may remain in the U.S. and wait for the LPR adjudication, even if that takes years. You may apply for and receive interim work permission, and you may apply for and receive interim travel permission.

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How do I file an I-485 ASAP?

Reread Q2. You cannot file the I-485 properly until you have the appropriate supporting documents. If you file it with no supporting documents, that is considered by DHS to be a “frivolous” and unacceptable filing. It is their practice to reject and return such filings. You must have proper supporting documents.

The International Office understands the urgency you may feel to get the I-485 filed, but you must follow appropriate procedures to establish a priority date, and your preference category and priority date must be available before you can file the I-485 properly. Improper or premature filings can cause confusion and may render you out of status.

You and your department must consider the following points of progress through the immigration process.
Departmental support. You must first obtain the full support of your department for the LPR process. Many departments cannot make this decision quickly because they must consider availability of funding and the staffing needs of the department. No departmental request = No filing of any kind through Duke.

LC required, but not yet filed. If the LC is required for your case, and has not yet been filed, it may take your department six months to comply with the DOL rules on recruiting so that we can file the LC, and another two to three months for DOL to approve the LC. You cannot speed up this process. No LC = No I-140 filing.

Exempt from LC. If you believe you are exempt from the LC because of your extraordinary abilities, your outstanding reputation, or your important work in the national interest, be realistic about how quickly you can assemble proof of those facts. Read Section 1 to see the list of evidence you must provide. You must submit these documents to your department for review and your department must agree to sponsor you in this category. No proper evidence = No I-140 filing. No departmental support = No I-140 filing.

LC approved, but I-140 not yet filed. If the LC has already been approved, then we have notified you and your department of that approval. It is the responsibility of you and your department to collect the documents we need to file the I-140. You may file the I-485 at the same time if immigrant visa numbers are available for your preference category and priority date.

I-140 filed. If Duke has already filed the I-140 for you, but you have not filed the I-485 yet, you may do that at any time that immigrant visa numbers are available for your preference category and priority date.

Ready to file I-485. To file the I-485, you must have all of the supporting documents, such as birth certificates, marriage certificates, medical exams, and so on.

I-485 filed. If Duke has already filed the I-140 and you have filed the I-485, then relax a bit. You have protected your ability to remain in the U.S. You may have to file for interim work permission and interim travel permission, but at least you have those options open to you.

Following are some example situations that my help you determine where you are in the process. The examples start with the best case and move down to nearly no options. All of these examples assume that you are fiing for adjustment of status in the U.S., not processing at a consular post abroad.
Situation 1.
Filings.

LC has been approved or is nor required.
I-140 has been filed and approved.
I-485 for adjustment has been filed, and is still pending.

Protections and options.

You have a priority date, which means that you have a place in the waiting line.
You are permitted to remain in the U.S. while you wait for adjudication of the I-485, even if that takes years.
You will need to obtain work permission from DHS to continue working after your temporary work authorization ends.
You will need to obtain permission from DHS to exit the U.S. and return. That permission is called Advance Parole.
If you already hold H-1B status, then your employer may be able to extend that status for you while you wait.