JERRY C. CHANG LAW OFFICE, P. C.
6057A Arlington Blvd. (Rt.50), Falls Church, VA 22044
TEL: (703) 237-1170 FAX: (703) 534-8734

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Labor Certification/PR Application


A BRIEF INTRODUCTION TO THE PROCESS OF PERMANENT RESIDENCE APPLICATION

One who applies for an immigrant visa based upon the labor certification must be sponsored by an employer is willing to offer full-time, permanent employment and is also willing to participate in a labor market test according to federal regulations.

1.         Employers are required to place a job order and two advertisements on the Sunday's newspaper. If the application is for a professional occupation, the employer must conduct three additional steps from a list of alternative recruitment steps published in the PERM regulations. The employer will not be required to submit any supporting documentation with the LC  application, but must maintain and, when requested by the Certifying Officer, furnish the  documentation to support its answers, attestations and other information in the LC application.

2.         After having been satisfied by the recruitment results that no qualified, willing and available American workers accepted the job offer, and that the employment of the alien will not adversely affect the wages and working conditions of American workers similarly employed, the U.S. Department of Labor will issue Labor Certification.

3.         Filing of I-140, Immigrant Petition for Alien Worker, with the USCIS regional service center.

4.         Waiting for the visa quota to become available, then complete the final step of the adjustment process by filing I-485 or proceed with the process for consular interview .

The employer/petitioner is required to present documentary evidence to demonstrate its ability to pay the prevailing wage determinated by the Labor Department when the priority date is established (e.g. at the time the Labor Certification Application filed), and continues until the employee receives his/her lawful permanent residence (Green Card). 

The Department of Labor mainly decides whether it can certify the two elements described above.  The USCIS and the Department of State handle issuance of visas and have authority to investigate certain matters relevant to the labor certification.  For example, although labor certification has been granted by DOL, the Immigration Officer or Consular Office may still deny the application if further investigation subsequent to the grant of labor certification reveals that the alien did not actually have the required work experience stated in his or her labor certification application, or the employer/petitioner cannot establish its financial ability to pay for the prevailing wage.

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Permanent Residence From a Job Offer
The Labor Certification

What is a Labor Certification?

An approved labor certification (LC) is a document issued by the U.S. Department of Labor (DOL) certifying that:
  • An employer needs the foreign workers skills and abilities.
  • The employer has tried to recruit U.S. workers for the position. The employer must advertise and perform other recruitment efforts to try to find someone who is already an U.S. citizen or permanent resident who is ready, willing and able to fill the open position.
  • The employer has offered the position at the normal or prevailing wage.
  • The employer has found no qualified U.S. workers. Candidates who respond to the recruitment are presumed to qualify. The employer must convince DOL that they do not. If DOL is not convinced, the labor certification will not be issued and the foreign national will not be able to immigrate to the United States.
The Labor Certification Process

Establish a valid/employee/employer relationship.
  • Although the LC process can be done for persons who are outside the US, most LCs are begun for persons in the United States who are already working for an American employer.
Determine the minimum requirements.
  • The key to the LC process is to decide what are the true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered.
Determine the prevailing wage.
  • The salary offered must be at least the prevailing wage, as determined by DOL.
Conduct recruitment efforts.
  • A test of the labor market is usually done through a three-day newspaper advertisement or one advertisement in a national journal or newspaper, and a posting.
Analyze responses.
  • Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.
What Happens After Labor Certification Approval?

The approved LC is filed with the U.S. Citizenship and Immigration Services (USCIS) along with other paperwork to determine whether the foreign national qualifies for one of the following categories of sponsorship:
  • Members of the Professions with Advanced Degrees or the equivalent or Aliens of Exceptional Ability in the Sciences, Arts of Businesses (Second Preference).
  • Professionals, Skilled Workers (jobs requiring two years or more training or experienced) or Unskilled Workers (jobs requiring less than two yeas training or experience (Third Preference).
It will take many years to immigrate under the Third Preference Unskilled category and about one to two years for persons classified under the Second and remaining Third Preferences. Strategies to avoid the Third Preference Unskilled classification whenever possible are imperative.

How Long is the Labor Certification Valid?

Under the current 20 CFR § 656.30, the approved permanent labor certification will expire if not filed with I-140 petition to USCIS within 180 calendar days from the LC approval date.

However, USCIS considers the timely filed LC remains valid indefinitely.

In the absence of fraud, once the labor certification is filed with an I-140 within its 180 validity period, it remains valid indefinitely for the purpose of filing a future I-140 petition by the same sponsoring employer or its successor-in-interest on behalf of the same beneficiary.

Common Misunderstandings

An approved LC is proof that there is a shortage of US workers. It is only a first step in the permanent residence process of obtaining the "Green Card."

  • It does not give authorization for a foreign national to remain in the United States.
  • It does not legalize anyone's stay in the United States.
  • It does not grant permission to work.
  • It does not guarantee permanent residence.
* This information provided by American Immigration Lawyers Association.

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Establishing the Prevailing Wage

(ETA Form 9089 Part F and G)
In part G of the ETA Form 9089, the employer must specify the rate of pay for the position being offered. This rate of pay must meet the standards of the DOL for the prevailing wage for that position among American workers in the area of intended employment. 20 C.F.R. 656.21(b)(3). The prevailing wage determination is required to ensure that employment of the alien does not "adversely affect" the wages of U.S. workers, a finding required by 212(a)(5)(A) of the Act, 8 U.S.C. 1182(a)(5)(A). If the State Labor Department determines that the rate of pay stated in the Offer of Employment is less than the prevailing wage for the occupation in question, it notifies the employer that it must raise the rate of pay to match or exceed the prevailing wage or else risk denial of the labor certification application by the certifying officer at the regional office.

The State Labor Department is mandated to contact a sufficient number of employers to create an adequate sample of salaries for the position offered. This office is then required to calculate the prevailing wage by adding the total wages for all the employers surveyed and dividing this figure by the number of employees included in the survey. Because the prevailing wage is based on a survey that is admittedly imprecise, the employer is permitted to establish a rate of pay that is within 5 percent of the average rate determined through the use of the survey.

If an employer decides to challenge the prevailing wage determination, the burden is on the employer to produce evidence that the prevailing wage established by the DOL is inaccurate. Most commonly, an employer brings forward industry wage surveys conducted by industry associations or groups of which the employer is a member. Alternatively, many large employers maintain their own wage surveys, which they use in establishing their rates of pay for various occupations. The employer is entitled to request from the local office the basis for establishing the prevailing wage, and if that basis is considered inadequate by the employer, the challenge can be made to the prevailing wage determination by putting forward alternative data.

The final authority with regard to the prevailing wage determination is vested, as with all other decisions on the application, with the regional certifying officer of the Federal Labor Department.

After the Alien receives approval from the Labor Department for the Labor Certification Application, the original Labor Certification Application and the immigrant visa petition including supporting materials will be submitted to the U.S. Citizenship and Immigration Services (USCIS) Regional Office having jurisdiction over the intended place of employment. At this time, USCIS will requires a copy of your company's most recent income tax return along with their financial documents, such as business bank account statements, to establish that your company had the ability to pay the alien's offered wages/salary as of the date the Labor Certification Application was filed. 8 CFR § 204.5(g)(2).

Your company must demonstrate that it has the "financial ability to pay the wage offered and that the employee beneficiary meets the minimum requirements to perform the job satisfactorily." Chang v. Thornburgh, 719 F.Supp. 532, 536 (N.D. Tex. 1989). In addition to the company's income tax return, USCIS will consider the alien employee's ability to generate income when determining the employer's ability to pay the salary. Furthermore, IRS quarterly reports showing the alien was actually paid during the year when labor certification was filed can also be a source of proof of your company's ability to pay the offered salary. Additionally, UCSIC will consider the employer's cash reserve in the bank in determining its ability to pay the alien's proposed wages.

The DOL takes the position that the employer need not begin to pay the alien the prevailing wage until such time as the alien has been admitted to permanent residence. Therefore, it does not check to ascertain whether the employer is currently paying the alien the prevailing wage, as long as the employer affirms that it is prepared to offer the alien that wage and as long as the employer advertises and recruits at the prevailing wage. The USCIS recently conformed its policy to the DOL review.

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Information/Documentation Needed for Labor Certification Application

To start the process for Labor Certification Application, please provide the following information/documentation:
  1. A copy of your most recent I-94 (a white card, the arrival and departure record issued at airport of entry, please make sure the USCIS stamp and notation are visible)
  2. A copy of your passport (pages bearing date & place of birth, visa issued by US Government, passport number and expiration date).
  3. All H-1B approval notices
  4. All W-2s and paystubs from the Petitioner/current employer
  5. All relevant Certificates of Experience
  6. Names and addresses of school attended and the period of study (from month/year to month/year); Diploma and Transcript
  7. Your address in home country (in English and your native alphabet)
  8. Your current address and telephone numbers (work and home)
  9. Your job title, duties and pay
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Documents Required for Permanent Residence Application

Please provide following documentation for Form I-140:
  1. A copy of your most recent I-94 (a white card, the arrival and departure record issued at airport of entry, please make sure the USCIS stamp and notation are visible).
  2. A copy of your passport (pages bearing date & place of birth, visa issued by US Government, passport number and expiration date).
  3. All H-1B approval notices

  4. All W-2's issued from the Petitioner (your current employer)

  5. All paystubs issued from the Petitioner for the past 5 -6 pay periods

  6. All relevant Certificates of Experience

  7. Your address in your home country (in English and your native alphabet)

  8. Name, birthday, birthplace and current address of your spouse and children under age 21

Please provide us with following information/documentation (original or copy) for preparing the Adjustment Application (I-485) for you, your spouse and children:
  1. A copy of your most I-94 (a white card, the arrival and departure record issued at airport of entry, please make sure the USCIS stamp and notation are visible)

  2. I-20, EAD or any documents to prove you visa status

  3. Passport ( a clear copy with pages bearing date and place of birth, visa issued by US Government, passport number and expiration date)

  4. Three Photos, tow extra photos need for work permit (if applicable)

  5. Birth Certificate/Household Record (with English Translation)

  6. Marriage Certificate (with English Translation).

  7. Employment Letter (sample will be provided)

  8. Information needed for preparing the Affidavit of Support (for your unemployed family members):

    • Bank Statement for last month
    • Copy of W-2 & Federal Tax Return copy for last 3 years
    • Market value of your read property (residence) and the amount of the mortgage
    • Reasonable value of other personal properties (cars, furniture, jewelry, etc.)

  9. Medical Examination Report (the medical form will be provided later and please call USCIS 24 hours information line 1-900-375-5283 for designated medical doctors in your area to schedule the medical check-up)

  10. Information for G-325A: the last 5 years residence and last 5 years employment of yours, your spouse's and children under age of 21 who will join you in filing the adjustment application.
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Establishing a Bona Fide Job Offer:
Information Regarding Prevailing Wage, Employer's Ability to Pay, and Proffered Wage for Employment Based Immigration

For employment based immigration, the Bureau of Citizenship and Immigration Services (BCIS) must verify that the job offer is bona fide before granting permanent residency. To do this, BCIS assesses information gathered at three different points in the application process. First, in the Labor Certification process (ETA-750), the prevailing wage for the position determined. Next, in the Immigrant Petition (I-140), BCIS requests verification of the employer's ability to pay the prevailing wage. Finally, in the course of the adjustment interview, the BCIS officer will ask the beneficiary about his or her proffered wage. With this information the BCIS officer will be able to determine whether the position is bona fide, that is whether the position pays a wage that is in compliance with the prevailing wage as established by the Department of Labor in the Labor Certification process. The paragraphs below provide more information about each of the three pieces of information.

Prevailing Wage: The prevailing wage is the average wage determined by the Department of Labor at the time and place of filing application for persons similarly employedEin the area of intended employment. 20 CFR §§ 656.20(c)(2), 656.40

Employer's Ability to Pay: The Employer must demonstrate the ability to pay the prevailing wage from at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residency. To demonstrate the ability to pay the prevailing wage, an employer can submit either copies of annual reports, federal tax returns, or audited financial statements. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by BCIS. (The priority date is established upon the receipting of the Labor Certification Application at the local employment service.) 8 CFR § 204.5(g)(2)

Proffered Wage at the Conclusion of the Adjustment Process: During the course of the adjustment process, for doubtful cases, the BCIS officer may request verification such as payroll slips and a letter from the employer. It is important to note that the employee does not need to be paid the prevailing wage throughout the process of I-485, Application to Adjust to Permanent Resident Status. At the conclusion of the adjustment process, however, the employer should demonstrate its ability and intent to pay the prevailing wage that was established through the Labor Certification process. The prevailing wage is not required to adjusted to any subsequent changes in the labor market that may have occurred throughout the I-485 application process, which could take up to 24 months or more. BCIS Operation Instruction §§ 245.2, 245.3.

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20 CFR §656.21
New Requirements on Reduction in Recruitment
October 2001

RIR is no longer in effect, PERM proceedings come into effect in March 2005.

The employer's recruitment efforts after filing an application may be reduced, if the employer can document that the labor market was adequately tested during the six months previous to filing the application. The request for reduction of further recruitment must be in writing.

The employer should file proof of its efforts to recruit U.S. workers with the Foreign Labor Employment Certification office along with the application for labor certification. The documentation should include an indication of the employer's recruitment efforts for the job opportunity which shall:

  1. List the sources the employer used for recruitment, including, but not limited to, advertising; public and/or private employment agencies; colleges; or universities; vocation, trade, or technical schools, labor unions and/or development or promotion from within the employer's organization. The recruitment sources should be normal to the occupation.
  2. Identify each recruitment source by name.
  3. Give the number of U.S. workers responding to the employoer's recruitment.
  4. Give the number of interviews conducted with U.S. workers.
  5. Specify the lawful job-related reasons for not hiring each U.S. worker interviewed.
"It is the employer's burden to establish good faith efforts during the recruitment phase. Employer must try an alternative means of contacting applicants if one type of contacact does not work. For example, if the employer is unsuccessful at contacting the applicant by telephone, it is strongly suggested that follow up contact be made via certified mail, return receipt requested, or some othe rmeans of mail that would provide documentary evidence of attempts to contact the applicants.


The employer should include a copy of at least one advertisement that was run prior to filing the application for certification.

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Continuing Validity of I-140 Petition in accordance with Section 106(c) American Competitiveness in the Twenty-First Century Act of 2000 (AC21)

The need for job flexibility resulting from the slow process of Labor Certification/ Permanent Residence applications has been acknowledged by U.S. Citizenship and Immigration Services.  Under INA § 204(j), the applicant may change job or employer after his/her I-485 application has been pending for more than 180 days without voiding the approved I-140 or labor certification, if the new job is in the same or a similar occupational classification as the job for which the petition was filed.  

Please note that while determining if the new employment is the "same or similar" occupational classification, USCIS will look into the job description listed in the LC application.  

Further, in a memo dated August 4, 2003, Mr. Yates, Acting Associate Director for Operations at USCIS, clarifies that if the employer withdraws the approved  I-140 petition on or after the date that the  I-485 application has been pending 180 days, the approved I-140 petition shall remain valid under the provisions of §106(c) of AC21.

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Visa Quota

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored spreference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers."

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

For additional information : Visa Quota

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The Extension of Section 245(i)
Frequently Asked Questions

  1. What is the new Section 245(i) provision?

    The Legal Immigration and Family Equity Act of 2000 (LIFE Act) extends Section 245(i) by replacing the old eligibility cutoff date (January 14, 1998, the "grandfather" date) with a new date of April 30, 2001. This means that eligible people have until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in this country. IMPORTANT NOTE: The LIFE Act added a new "physical presence" requirement which means that people need to prove that they were actually in the U.S. on the date of enactment of this measure, December 21, in order to be eligible to use Section 245(i). Under the changes made by the LIFE Act, Section 245(i) will be available for any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000, the date that the new deadline became law. All qualified beneficiaries will be "grandfathered-in" under Section 245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.

  2. Who can benefit from the new Section 245(i) provision?

    A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from these provisions. Without Section 245(i), most persons who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as a crewman, or were admitted in transit without a visa would not have been eligible to adjust status in the U.S. If an individual is eligible for permanent residence, but not eligible for adjustment of status, that person might still obtain permanent residence by leaving the U.S. and completing the process for an immigrant visa at a U.S. consulate abroad. However, if that individual had been unlawfully present in the U.S. for more than 180 days, he or she would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that persons who would be subject to the bars not leave the U.S. at all until the adjustment of status process is completed.

    Note that an immediate relative who was inspected upon entry can adjust status without use of Section 245(i).

  3. What does the new physical presence requirement mean and how do you prove compliance with it?

    Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on the date that LIFE Act is signed into law, December 21, 2000. A joint memorandum that Senators Kennedy (D-MA) and Abraham (R-MI) wrote clarifying some of the provisions of the new law emphasizes that the function of the physical presence requirement is to make sure that the renewed availability of Section 245(i) does not encourage anyone to illegally enter the United States in order to apply. The memorandum also states "It may be difficult for an individual physically present on the day of enactment to establish his or her presence on that precise date to qualify for 245(i). The U.S. Citizenship and Immigration Services (USCIS) should therefore be flexible in the types of evidence it will accept to establish physical presence on the day of enactment. For example, the kind of evidence of physical presence USCIS ordinarily accepts demonstrating that the applicant has been physically present during a reasonable period preceding that date, accompanied by an affidavit or declaration that the person was present on the date itself, should ordinarily suffice." AILA is working with the White House and the USCIS to develop clear standards and guidelines that will accomplish this goal.

  4. How does a person file to take advantage of the new Section 245(i)?

    Any person who will need Section 245(i) in order to adjust status must ensure that their qualifying I-130, I-140, I-360, or labor certification application reaches the applicable government agency on or before April 30, 2001. Those who choose, and are eligible, to file their visa petition and application for adjustment of status at the same time must submit the application for adjustment of status under Section 245(i) (Form I-485A) along with the petition and the applicable fees. Since the law simply replaces the old January 14, 1998 deadline with a new April 30, 2001 deadline, AILA is urging USCIS to adopt similar policies to those announced to meet the old deadline, namely that skeletal applications should be accepted. We will be working with the USCIS to try to achieve a fair, effective, and efficient implementation.

  5. Why is April 30, 2001 an important ate?

    In order to use Section 245(i), applicants must prove that a bona fide immigrant visa petition or labor certification application was filed on their behalf on or before April 30, 2001. Therefore, any person who will need Section 245(i) in order to adjust status must file their I-130, I-140, I-360, or labor certification application
    on or before April 30, 2001. Any person whose petitions is filed after that date will not be eligible for Section 245(i), will be required to process an immigrant visa application at a U.S. Consulate abroad, and may be subject to the 3/10 year bars.

  6. What is the fee and when do you need to pay it?

    The Section 245(i) fee is still $1,000, and is in addition to any other filing fees levied by the USCIS. The $1,000 fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485). There are some circumstances in which the immigrant petition and the adjustment of status application can, at the applicant's option, be filed at the same time: immediate relatives of United States citizens may file the Form I-130 and I-485 concurrently, and USCIS has indicated that it plans to soon allow I-140 petitions and I-485s also to be filed concurrently. However, in most cases, the adjustment of status application is not filed until after the immigrant petition has been approved, and in many employment- based cases until after both the labor certification and immigrant petition have each been approved. Thus, in many cases, the fee will not have to be paid before the April 30, 2001 deadline.

  7. Do the new Section 245(i) provisions give a person work authorization, protection from deportation, or travel permission?

    NO! Section 245(i) only allows people who illegally entered the United States or are ineligible for adjustment of status under Section 245(c) to apply for adjustment of status in the United States if they are otherwise eligible for adjustment. It offers no other protections or rights. 21LE0005.rev2

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USCIS issues Foreign Travel Advisory for Aliens With Pending Immigration Applications

Aliens who have applied to adjust to that of permanent resident or change nonimmigrant status must obtain Advance Parole from the USCIS before traveling abroad (see questions and answers below). However, due to recent changes to U.S. immigration law, travel outside of the United States may have severe consequences for certain aliens who are in the process of adjusting their status or changing their nonimmigrant status. Such aliens may be found inadmissible, their applications may be denied, or both.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission, even if they have obtained Advance Parole. Those aliens unlawfully present in the United States for 180 days but less than one year are inadmissible for three years; those who are unlawfully present for more than one year are inadmissible for 10 years.

For more information, call the USCIS nationwide toll-free information service at 1-800-375-5283.Further information on Advance Parole can also be found on USCISEWeb site at www.uscis.gov.

ADVANCED PAROLE: QUESTIONS AND ANSWERS

  1. What is Advance Parole?

    Advance Parole is permission for certain aliens, who do not have a valid immigrant visa, to re-enter the United States after traveling abroad. Such aliens must be approved for Advance Parole before leaving the United States. If they have not obtained Advance Parole prior to traveling abroad, they will not be permitted to re-enter the United States upon their return.

  2. Who needs Advance Parole?

    Aliens in the United States who have:

    • An application for adjustment of status pending,

    • Been admitted as a refuge or have been granted asylum,

    • Been granted benefits under the Family Unity Program,

    • Been granted Temporary Protected Status,

    • An asylum application pending, and/or

    • An emergent personal or bona fide reason to travel temporarily abroad.

    Note: Aliens holding valid H-1 (temporary worker in a specialty occupation) or L-1 (intra-company transferee) visas and their dependants who have filed for adjustment of status do not have to file for Advance Parole as long as they maintain their nonimmigrant status.

  3. Who is not eligible for Advance Parole?

    Aliens in the United States are not eligible for Advance Parole if they are:

    • In the United States without a valid immigration status,

    • An exchange alien subject to the foreign residence requirement,

    • The beneficiary of a private bill, or

    • Under removal proceedings.

  4. How does one obtain Advance Parole?

    In general, an alien must file USCIS Form I-131, Application for a Travel Document, complete with supporting documentation, photos and the $305 fee. Since filing procedures vary among USCIS District Offices, applicants for Advance Parole should contact their local USCIS office for specific directions.

    Information on how to locate and contact your local District Office as well as copies of Form I-131 can be found on the USCIS Web site www.uscis.gov. Forms also can be requested using USCIS' toll-free forms request line 1-800-375-5283.

  5. Does Advance Parole guarantee admission into the United States?

    No, Advance Parole does not guarantee admission into the United States. Aliens who have obtained Advance Parole are still subject to the USCIS inspection process at the port of entry.

  6. Can travel abroad still have severe consequences for certain aliens, even if they have obtained Advance Parole?

    Yes, due to changes to U.S. immigration law, travel outside of the United States may have severe consequences for certain aliens who are in the process of adjusting their status or changing their nonimmigrant status. Such aliens may be found inadmissible to the United States upon return and/or their applications for adjustment or change of status may be denied.

    Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after accruing certain periods of unlawful presence in the United States can be barred from admission, even if they have obtained Advance Parole. Those aliens who are unlawfully present in the United States for 180 days but less than one year become inadmissible for three years; those who are unlawfully present for more than one year become inadmissible for 10 years.

    Aliens who have concerns about their admissibility should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making foreign travel plans.

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Copyright © 1998 Jerry C. Chang Law Office, P.C.