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PERM: I can get my Green Card much faster!

Posted on May 20, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have heard a great deal about the new PERM program. Specifically, that it will take only 60 days or less to rule on the PERM application once it is submitted to the Department of Labor. Does this mean that I can immediately apply for a Green Card after receiving an approved Labor Certification?

Answer: The answer would be yes and no depending on your particular case. The normal procedure for a typical Labor Certification (which is what the new PERM is) would be for the employer to file what is known as the I-140 or employer petition once the Labor Certification is certified or approved. This petition is filed to the USCIS and basically would prove that the person is qualified for the position. If the visa number is available at the time the I-140 petition is filed, then the Adjustment of Status application could be filed at the same time as the I-140. In these types of cases, both subsequent applications to the labor certification could be filed at the same time and things would move very quickly. Of course, this also assumes that you are qualified to adjust your status in the United States to that of Lawful Permanent Residency.

However, in the last month, the EB-3 category for some countries has been backlogged and now has a significant wait before the visa number will become current. There are several categories that people fall under when applying for the Green Card. If the position requires less than two years experience, then it is considered unskilled labor. If the position requires more than two years experience, but does not require a college degree of at least a bachelor, then it is considered skilled labor. If the position requires a bachelor degree, but no type of higher degree, then it is considered a professional position. Thus, unskilled labor, skilled labor and professional positions all fall under the EB-3 category. If the visa number is backlogged, then you must await until the visa number becomes current in order to apply to adjust your status to that of a Lawful Permanent Resident.

Question: Which countries have backlogged EB-3 categories and how long do they have to wait?

Answer: There are three countries that are backlogged. They are China, India and the Philippines. If you happen to be from one of those countries, you must wait until the visa number becomes current in order to process the adjustment application after the visa number becomes current. At the present time, the current processing date is January 2002. Therefore, only if the priority date on the Labor Certification that you filed is on or before January 2002 will you actually be able to file the adjustment application at the present time. It does appear (although this could certainly change) that the wait for people in the EB-3 category would have to wait approximately 3 years for the visa number to be current for any new PERM application that is filed. Of course, it could be more or less depending on how fast the visa numbers are processed.

Question: What if I am from one of those countries, but my job requires a Masters or Doctorate degree?

Answer: In that case, you would not be in the EB-3 category, but rather, you would be in the EB-2 category for positions that require advanced degrees. If this were the case, there is no backlog and you would be able to file the adjustment application right away after the Labor Certification is approved.

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PERM: How to advertise?

Posted on May 15, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that PERM is now going to be the way that Labor Certifications are supposed to be done. However, I am very confused on how to do the advertising. Can you please let me know what must be done?

Answer: There are very specific rules for advertising. However, there are also requirements that are somewhat specific to the organization. First, notice of the job must be posted at the employer’s facility or location of the employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of where other required work documents are necessary to be posted.

Question: Other than the Job Posting is there other types of advertising the employer must do in their place of employment.

Answer: Yes. In addition to the Job Posting, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization. The documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer’s organization.

Thus, whatever the normal in-house procedures have been used for non PERM employees must be used for the prospective PERM employee.

Question: What other type of advertising must be done?

Answer: Each PERM application must be done through what is known as pre-filing recruitment. Therefore, the advertising must be done prior to the PERM being filed with the Department of Labor. There are two basic categories of advertising that must be done. First, is for the ‘Professional’ and the second is for the ‘Nonprofessional’. The Department of Labor defines a Professional as a position that requires at least a college degree.

The pre-advertising must be done no more than six months prior to the filing of the PERM application and at least 30 days. There must be two print-ads and one Job Order. A Job Order is placed with the State Workforce Agency or SWA. The start and end dates of the job order entered on the application serves as documentation that this step was done.

The advertisements must be in a newspaper or professional journals (if it is a Professional job.) The advertisement must be placed on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.

Question: What exactly must be in the advertisement?

Answer: The advertisement must (1) name the employer; (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer; (3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; 4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (5) Not contain a wage rate lower than the prevailing wage rate; (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

Question: Must a professional advertise in the papers and a professional journal?

Answer: No. If the job requires an advanced degree and experience and a Professional Journal would normally be used to advertise the position, then one of the Sunday advertisements can be substituted in with a Professional Journal advertisement.

Question: Is there anything else needed for the advertising? If it is a professional position, then there must be further recruitment steps. The employer must pick three additional recruitment steps. Only one of the three can actually be within 30 days of filing the application. The rest must be no more than 180 days of filing the application. (A) Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair; (B) Employer’s Web site. The use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application; (C) Job search Web site other than the employer’s. The use of a job search Web site other than the employer’s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements of this section can serve as documentation of the use of a Web site other than the employer’s; (D) On-campus recruiting. The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation; (E) Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification; (F) Private employment firms; (G) Employee referral program with incentives; (H) Campus placement offices. (I) Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement and/or (J) Radio and television advertisements.

Remember, that the other outside advertising needed for a nonprofessional would simply be the two advertisements in Sunday in a paper of general circulation and the SWA 30 day Job Order.

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H-1B’s and a Holiday Greeting!

Posted on May 14, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there are some new H-1B laws that have come out. Can you discuss what these changes are?

Answer: Changes in Certain USCIS Fees as a result of the approval of the FY05 Omnibus Appropriations Act The H-1B and L non-immigrant provisions of the Omnibus appropriations Act reinstate the American Competitiveness and Workforce Improvement Act (ACWIA) fees first put in place after the approval of the ACWIA in 1998. The requirements under the original ACWIA sunset on October 1, 2003. This was where the employer had to pay $1,000 fee for every H-1B petition filed.

For H-1B petitioners, the new fee for petitioners who employ 25 or more Full Time Equivalent employees is $1,500. Petitioners who employ no more than 25 Full Time Equivalent employees (including any affiliate or subsidiary) may submit a reduced fee of $750. The new $1,500 and $750 fees apply to any non-exempt petitions filed with USCIS after December 8, 2004. Certain types of petitions that were previously exempt from the fees remain exempt from the new $1,500 and $750 fees.

Question: I heard there was some type of fraud fee as well. Is that true?

Answer: Yes. The Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. The only petitions exempt from paying this fee are those that seek to amend or extend the stay of the beneficiary. This new $500 fee applies to petitions filed with the USCIS on or after March 8, 2005.

Each of these fees is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

Question: Are there any more H-1B’s available?

Answer: Yes. For persons with a Masters degree or higher, there is now an additional 20,000 H-1B visas.

I would personally like to extend my wishes to all the readers and their families for a Merry Christmas and a Happy New Year and a Happy Holiday Season.

As an immigration attorney, I do see families of immigrants being torn apart because of unfair and ruthless immigration laws. I will continue to fight for all of the immigrants and their families so that they can be reunited and together once more.

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Can I Petition My Adopted Sister?

Posted on April 27, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: How Do I Bring a Sibling to Live in the United States?

Answer: This information is for U.S. citizens who wish to bring a sibling to live permanently in the United States. Only U.S. citizens can bring their siblings to live permanently in the U.S. Lawful Permanent Residents can not.

First, you must know exact how the USCIS defines a sibling. A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a child of at least one of the same parents. The siblings need not share the same biological parents as long as both became “children” at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren).

Question: What must I do since I am eligible to petition my sister?

Answer: A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your brother or sister to become a legal immigrant: 1. The USCIS must approve an immigrant visa petition that you file for your brother or sister. Keep in mind that the USCIS is not actually ruling on these petitions until a visa number becomes available. 2. The State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed the immigrant visa application. 3. If your brother or sister is outside the United States when an immigrant visa number becomes available, your brother or sister will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your sibling is legally inside the U.S. when an immigrant visa number becomes available, he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485.

Question: How long must I wait for the visa number to become current?

Answer: Depending on the relationship and the country involved, the wait for an available sibling visa number may be several years. Unfortunately, for people from Mexico and the Philippines, the wait can be as long as 20 years.

Thus, keep in mind that many people such as your sibling sister may be able to come to the United States with an employment based visa much faster. If she has a college degree, she may be able to get an H-1B. She could also get an employer to sponsor her for a Labor Certification which would not take nearly as long.

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LULAC and CSS are back!

Posted on April 24, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for many years. Years back I applied under LULAC and was rejected. I know that there have been court cases on this matter for years. Is there any hope that it will come back or that I will be able to apply under CSS again?

Answer: You are right about the years of court cases. This matter, Catholic Social Services or LULAC has been up and down the court system for years. These types of applications were also known as legalization applications. Now, the U.S. District Court in Sacramento has approved a settlement agreement for persons who were previously rejected for certain reasons. This means, that if you fall under the provisions of the settlement agreement, you might be able to successfully apply for LULAC again in order to obtain Lawful Permanent Residency.

Question: Who is covered under the LULAC settlement agreement?

Answer: 1) You had to live in the United States unlawfully from before January 1, 1982, to a date between May 5, 1987, and May 4, 1988, when you went to an office of the Immigration Service or a Qualified Designated entity to apply for legalization.

2) You, your parent or your spouse visited an INS office or Qualified Designated Entity between May 5, 1987, and May 4, 1988, to apply for legalization.

3) The INS or QDE told you that you were ineligible for legalization because you had traveled outside the United States without INS permission. You, your spouse or your parent returned to the United States with an immigration issued document such as a Student Visa, Visitor Visa or some other Immigration issued document.

4) You do NOT need to have previously “registered” as a LULAC class member or even had a completed application. However, you did need to go the QDE in the specified time period.

Question: What type of evidence do I need to present to win under this LULAC Settlement agreement?

Answer: Clearly, many people do not have the original documents, or even any stamped documents from Immigration. Usually, if the former INS had rejected the application because of what is known as ‘front-desking’, the person was just turned away. Thus, it is not possible in many instances for an applicant to prove that they were rejected. However, the LULAC settlement specifically states that persons who fall under this settlement may establish eligibility for legalization by way of declarations, and not only by original documents. The settlement also provides class members the right to appeal to a “special master,” a judicial officer with the authority to correct the CIS’s errors in the event the agency does not decide a class member’s legalization application promptly, fairly, and in accordance with the settlement’s guidelines.

Question: When can I apply for this?

Answer: The settlement provides that CIS must begin accepting legalization applications no later than May 24, 2004, but the government might decide to begin the one-year application somewhat earlier. This means that individuals will likely have until May 23, 2005, to apply for legalization under the settlement.

Question: Is there any other previous amnesty related provisions that this settlement agreement is applicable toward?

Answer: Actually there are others. Catholic Social Services is another program that is applicable to this settlement agreement. There are a couple of differences. First, you would have had to travel outside the U.S. without authorization after November 6, 1986. Second, you returned to the U.S. without permission.

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What can I do if my husband is beating me?

Posted on April 15, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I married what I thought was a very loving man. However, after I came to the U.S., he started beating me. Now he threatens that if I tell anyone, he will have me deported and not help me with my petition. What can I do?

Answer: Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.

Question: Who is Eligible to file this type of petition?

Answer: To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

1) The Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

2) The Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

3) Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent.

Question: What are the Basic Requirements?

Answer: The self-petitioning spouse must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

You must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

You must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

You are required to be a person of good moral character. You must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

You should not live in this abuse and fear. There is help which you should seek.

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No more Work Permits for H-1B’s this year.

Posted on April 13, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a college degree in accounting and an employer that wants to sponsor me. I have been told that I qualify for the H-1B, but that there may be a problem with getting the H-1B adjudicated. My application was submitted about one week ago. I better hurry to get the application in to the immigration. How long do I have?

Answer: Unfortunately, you may be too late for this year. The United States Citizenship and Immigration Services (USCIS) have just announced that the H-1B procedures have reached the cap. In other words, the USCIS announced today that it has received enough H-1B petitions to meet this year’s congressionally mandated cap of 65,000 new workers. After today, USCIS will not accept any new H-1B petitions for first-time employment subject to the FY 2004 annual cap.

Question: What does this mean for my application?

Answer: First, the new H-1B’s will start again next October. USCIS has implemented the following procedure for the remainder of FY 2004: 1) USCIS will process all petitions filed for first-time employment received by the end of business on February 17, 2004; 2) USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today; 3) Returned petitions will be accompanied by the filing fee; 4) Petitioners may re-submit their petitions when H-1B visas become available next October; 4) The earliest date a petitioner may file a petition requesting Fiscal Year 2005 H-1B employment with an employment start date of October 1, 2004, would be April 1, 2004.

Question: What about my friend who has an H-1B that is about to expire and needs to get his H-1B extended? Is he also subject to the H-1B cap.

Answer: Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to extend the amount of time a current H-1B worker may remain in the United States, change the terms of employment for current H-1B workers, allow current H-1B workers to change employers, allow current H-1B workers to work concurrently in a second H-1B position.

Question: Are there any other exceptions?

Answer: USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

Question: What about persons who do not fall into those categories, but must file for the H-1B?

Answer: They cannot file now for the H-1B. However, there are other types of status they could try to apply for if they qualify. Such examples would be the O (Extraordinary Ability), or F (Student) change of status. They must be careful to maintain their status or they will not be able to change their status once the H-1B’s begin again next October.

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Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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Why can’t I get my adopted orphan into the U.S.?

Posted on April 10, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My husband and I have tried for years to have a baby. Unfortunately, we have been unable. However, we have found a beautiful baby girl from the Far East. She is an orphan and we thought we could just adopt her and bring her back to the U.S. It appears that this is not the case. Please let me know what we have to do to bring our future daughter home.

Answer: First, the child has to qualify as an orphan. First she must be under 16 at the time the visa petition is filed. Next, the child’s parents must have been either killed or abandoned or deserted her. If one parent is still alive, that parent must commit in writing a document that he or she is completely unable to care for the child and is giving the child up for adoption. Next, you have to qualify to adopt the child. For an orphan petition, you must be a U.S. Citizen and adopting the child jointly with your spouse. Alternatively, one can be an unmarried U.S. Citizen who is at least 25 years old.

Question: How do we go about adopting the orphan?

Answer: There are two ways to adopt an orphan. First, the child may be adopted abroad by a couple or an unmarried U.S. citizen if they personally saw or observed the child before or during the adoption proceedings. Second, the child may come to the United States for adoption by the couple or unmarried person if they have complied with the preadoption requirements, if any, of the child’s proposed U.S. residence. In addition, the Immigration must be satisfied that proper care will be provided for the child.

Question: How do we petition to get the orphan here into the U.S.?

Answer: Petitioning for an orphan involves two distinct determinations. The first determination focuses on the ability of the prospective adoptive parent(s) to provide a proper home environment and on their suitability as parents. This determination is based primarily on a home study and fingerprint checks submitted with the advanced processing application. The second determination, based on the orphan visa petition, concerns whether the child is an orphan under the INA. The prospective adoptive parent(s) may submit documentation for each of these determinations separately or at one time, depending on when the orphan is identified. An orphan visa petition cannot be approved unless there is a favorable determination on the advanced processing application. A favorable determination on the advanced processing application, however, does not guarantee that the orphan visa petition will be approved.

If the State which you are living has preadoption requirements, they must be complied with.

Question: After both petitions are filed, how can I bring our child into the United States?

Answer: First, an orphan petition can be denied for a variety of reasons, including: (1) failing to establish financial ability to care for the child; (2) failing to establish that the child is an orphan; (3) failing to establish an ability to care for the child properly; (4) filing the orphan petition more than 18 months after the I-600A advanced processing application has been approved; or (5) evidence of child-buying. The regulations define child-buying as any money or other consideration given directly or indirectly to the child’s parents, agents, or other individuals as payment for the child or as an inducement to release the child.

Assuming it has been approved, the Immigration will notify the parents and the U.S. embassy or consular post that will issue the visa on approval of the application. The State Department must then complete what is known as an I-604 investigation. If the I-604 investigation reveals negative information, the information is forwarded to the INS for appropriate action.

If the I-604 investigation reveals nothing adverse and the case is otherwise clearly approvable, the State Department consular officer will issue the visa to allow the orphan to enter the United States. If the petition is not clearly approvable, however, the consular officer will refer the case back to Immigration.

As of February 27, 2001, an orphan becomes a U.S. citizen automatically upon admission to the United States, as long as the child is entering on an immigrant visa.

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Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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