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Other Issues Pertaining to Employment-Based Immigration

LABOR CERTIFICATION
Some immigrant visa preferences require you to already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:
  • There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
TAXABLE INCOME

A resident alien’s income is generally subject to tax in the same manner as a U.S. citizen. If you are a resident alien, you must report all interest, dividends, wages, or other compensation for services, income from rental property or royalties, and other types of income on your U.S. tax return. You must report these amounts whether from sources within or outside the United States.

SECTION 245(K) ELIGIBILITY

Section 245 (k) of the Immigration and Nationality Act allows the beneficiary of an employment-based immigrant petition to apply for adjustment of status in the U.S., without having to exit, as long as the applicant’s violation of status does not exceed 180 days. The beneficiary must meet all the admissibility requirements to become a lawful permanent resident.

SECTION 245(L) ELIGIBILITY PURSUANT TO THE SURVIVING RELATIVES LAW

When either the petitioner or the principal beneficiary dies in a wide variety of instances, the Surviving Relatives Law serves to protect the surviving family members:

  1. Parents, spouses, and children of a U.S. citizen with pending or approved petitions;
  2. Beneficiaries – principal or derivative – of pending or approved family-based petitions;
  3. Beneficiaries – principals or derivative – of pending or approved employment-based petitions;
  4. Beneficiaries – principal or derivative – of pending or approved asylee/refugee relative petitions;
  5. Non-immigrants entitled to “T” (trafficking victims) or “U” (crime victims) status.
SECTION 245(I) ELIGIBILITY

Section 245(i) of the Immigration and Nationality Act allows the beneficiary of an immigrant petition to apply for adjustment of status in the U.S., without having to exit despite the applicant’s status violation, as long as the beneficiary meets either one of the following conditions: (a) an approvable visa petition was filed on behalf of the beneficiary on or before January 14, 1998, or (b) an approvable petition was filed on behalf of the beneficiary on or before April 30, 2001 and the beneficiary can prove physical presence as of December 21, 2000, AND the beneficiary pays the penalty of $1,000. A beneficiary who is grandfathered under Section 245(i) may still qualify for adjustment of status even though the ultimate basis is a petition that was filed after April 30, 2001. The beneficiary must meet all the admissibility requirements to become a lawful permanent resident.