If an individual is currently in status and has an employer who is willing to sponsor them, they might want to initiate the filing of an employment based immigrant petitions which involves three stages.
Most employment based petitions fall under the 3rd preference employment based category. This category includes positions which require a bachelor’s degree or at least two years of training or experience. Examples of these positions are accountants, engineers, teachers, nurses and caregivers. For April 2015, the US Department of State is processing petitions which have a priority date of October 1, 2014. With the current processing times, the wait for the employees to get their permanent resident are now much shorter.
Individuals who are currently here in the United States may want to take advantage of this short wait in the processing times. If an individual is currently in status and has an employer who is willing to sponsor them, they might want to initiate the filing of an employment based immigrant petitions which involves three stages. The first step is to file a labor certification application with the US Department of Labor. The US Department of Labor is the government agency tasked to determine whether or not US workers will be displaced if the position is offered to the beneficiary. Once the application is certified, the employer must file an immigrant petition with the US Citizenship and Immigration Services. Once the petition is approved, the beneficiary may now apply for an application for adjustment of status or undergo consular processing if the beneficiary is outside the United States.
Under the present state of the law, a person who is no longer in lawful nonimmigrant status will not be allowed to file for an application for adjustment of status here in the United States even if an immigrant petition has been approved for that person and his priority date is already current. There are however some exceptions to this general rule.
The first exception is if the petition was filed by a US citizen spouse, child or parent and that parent is petitioning for a child below 21 years old. The second exception is if the applicant is applying for adjustment based on an employment based petition filed within 180 days from the date the applicant fell out of status. The last exception is if the person is covered by Section 245(i) of the Immigration and Nationality Act. Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or labor certification applications filed on or before January 14, 1998, to file for adjustment of status in the US despite having fallen out of status or having entered without inspection. A limited extension of Section 245(i) in 2000 covered beneficiaries of immigrant visa petitions or labor certification applications filed on or before April 30, 2001. However these beneficiaries should have been physically present in the United States on or before December 21, 2000 to qualify for 245(i).
Section 245(i) is one of the more significant legislations passed and the law has allowed a substantial number of individuals to get their permanent residence status. People who are covered by 245(i) must take advantage of this law so that they may be able to legalize their stay in the US.
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Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected]. The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.
