PERM, I-140, and the green card: three different things

01

Step one: the Department of Labor's permanent labor certification

A permanent labor certification issued by the Department of Labor (DOL) allows a U.S. employer to permanently employ a foreign worker. In most cases the employer must obtain labor certification before filing an immigrant petition with USCIS. Since March 28, 2005, new applications use Form ETA-9089 under the PERM system.

The date the Department of Labor receives the application is called the filing date and is used by both USCIS and the State Department as the priority date. Once labor certification is approved, it should be filed together with Form I-140 with USCIS.

Labor certification is not valid indefinitely: 20 CFR 656.30(b)(1) provides that a permanent labor certification approved on or after July 16, 2007 expires if it is not submitted to the Department of Homeland Security with Form I-140 within 180 calendar days of the Department of Labor's approval date.

02

When an individual labor certification is not required

Schedule A occupations have been determined by the Department of Labor to have an insufficient number of U.S. workers, so no DOL-approved labor certification is required, though certain uncertified materials such as Form ETA-9089 must still be submitted.

EB-2's National Interest Waiver (NIW) waives the job offer requirement and therefore waives labor certification; the applicant may file Form I-140 themselves, but must still include a completed ETA-9089 Appendix A and a signed Final Determination. EB-1 extraordinary ability likewise allows self-petitioning.

03

Step two: Form I-140 only establishes that the category applies

Form I-140 is the immigrant petition for an alien worker, establishing that you qualify for a given employment category. Approval of Form I-140 does not equal obtaining a green card: you still need, once a visa number is available, to file Form I-485 to adjust status within the United States, or to obtain an immigrant visa through consular processing abroad.

In some cases Form I-485 may be filed concurrently with Form I-140, or while Form I-140 is pending, but a visa number must still be available.

04

Changing jobs while Form I-485 is pending: the 180-day rule

USCIS states that if your Form I-485 has been pending 180 days or more, and you can show the new job is in the same or a similar occupational classification as the position in the original Form I-140, an already-approved Form I-140 may continue to be used for adjustment of status, subject to other conditions (such as admissibility) being met. Whether it applies must be determined case by case under the official requirements.