2. EMPLOYER'S BUSINESS CLOSED?
This is one of the most aggravating problems that may develop for an alien while waiting for a Green Card.
Even for us, as lawyers, this is very upsetting. We know how much effort, time and money our client has invested in a Labor Certification case - and suddenly, for no fault of the alien employee, the business closed. The Labor Certification is based on a specific job offer by a specific employer and suddenly they are gone. Is all lost?
Fortunately, not always. Many times some value can be salvaged from this wreck. It all depends on the timing of the closure of the business.
First, it is necessary to understand that for the alien being sponsored, the most important element of the Labor Certification is not the "job offer" or even the "business". The most important part is the "Priority Date". This is the date on which the sponsor's Application for Alien Labor Certification is accepted by the U.S. Department of Labor (DOL), not the later date when it was approved by DOL. This filing date, known as Priority Date, is like a number on a waiting-list. It controls the time when the alien can get his or her Green Card or Immigrant Visa. If the Priority Date can be saved for the alien worker, something of value still exists.
There are three steps in the process of immigrating on the basis of an offer of employment from a business in the U.S.
• Sponsor's (or employer's) filing an Application for Alien Labor Certification on behalf of the alien with the U.S. Department of Labor (DOL) and DOL's approval of such Labor Certification;
• Sponsor's (or employer's) filing a Visa Petition (Form I-140) on behalf of the alien with the U.S. Citizenship and Immigration Services (CIS) and CIS' approval of the I-140 petition;
• Alien worker's filing an Application for Adjustment of Status (Form I-485) with the U.S. Citizenship and Immigration Services (CIS) in the U.S. or an Application for Immigrant Visa (Form DS-230) with an American Consul outside the U.S., and approval of such an application.
If the business closes while the Application for Labor Certification is still pending with the Department of Labor, or if the closure of the business occurs before the I-140 petition is approved by CIS, than the Labor Certification is lost, the Priority Date cannot be saved and the alien must begin the process all over with a new sponsor/employer/business. However, even in this bad situation - if the labor Certification was filed on or before April 30, 2001 (4/30/2001), the alien may still keep the benefit of Section 245(i) (the right to get a Green Card inside the U.S. without having to leave the country).
If the business closes after the I-140 petition has been approved, the alien worker must find a new sponsor to make a new offer of employment and a new Application for Labor Certification and a new I-140 visa petition. But the new petition would get the "old" Priority Date of the Labor Certification by the previous employer, the one whose business closed. This is a great advantage, because it may expedite, shorten the alien's wait for a Green Card by many years.
If the business closes after the alien worker has filed an Application for Adjustment of Status (Form I-485), and the application has been pending for at least six (6) months, the alien is in a pretty good situation: All he or she needs is a new offer of employment from a new business, if the new job is "in the same or similar occupational classification". A new Labor Certification is not required - a new I-140 petition is not required - the original Priority Date is still valid - and all is well that ends well.
The problem described here is aggravating and confusing. A consultation with an experienced immigration lawyer could clarify what can be done to solve this problem and what is required to do it.