Going through the Immigration process can at times be confusing and complicated. Certainly, the immigration process in the United States involves multiple government agencies, each with distinct roles and responsibilities. The three key agencies that you should be aware of include:
USCIS (U.S. Citizenship and Immigration Services)
USCIS is a part of the Department of Homeland Security (DHS) and is primarily responsible for processing and adjudicating immigration applications. Its main roles include the following:
- Processing Applications: USCIS handles applications for various immigration benefits, including visas, green cards, citizenship, work permits, and humanitarian programs.
- Adjudication: USCIS reviews and approves or denies immigration petitions and applications based on eligibility criteria, background checks, and supporting documentation.
- Interviews and Examinations: USCIS conducts interviews and examinations for certain immigration categories, such as family-based green card interviews or naturalization interviews for citizenship applicants.
- Biometrics Collection: USCIS collects fingerprints, photographs, and other biometric data from applicants to verify their identity and conduct security checks.
DOL (U.S. Department of Labor)
The Department of Labor’s role in the immigration process is to ensure that the employment of foreign workers does not negatively impact U.S. workers. Its main roles include:
- Labor Certification: DOL is responsible for the labor certification process, which is often required for employment-based immigrant visas (green cards) in certain categories. Employers must demonstrate that there are no qualified U.S. workers available for the job and that hiring a foreign worker will not negatively affect wages and working conditions.
- Prevailing Wage Determination: DOL determines the prevailing wage for specific job positions and geographic areas to prevent exploitation of foreign workers and ensure fair compensation.
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Protecting U.S. Workers: DOL’s role in protecting U.S. workers includes ensuring that foreign workers are not hired at the expense of qualified American workers.
DOS (U.S. Department of State)
The Department of State handles the diplomatic aspects of the immigration process, particularly in the case of immigrant and nonimmigrant visa issuance. Its main roles include:
- Visa Issuance: DOS operates U.S. embassies and consulates worldwide and is responsible for issuing immigrant and nonimmigrant visas. It conducts interviews, reviews applications, and makes decisions based on eligibility and other factors.
- Visa Bulletin: DOS publishes the Visa Bulletin, which provides information on the availability of immigrant visa numbers for various preference categories and countries, particularly for family-sponsored and employment-based immigrants.
- Consular Processing: For immigrants applying from abroad, DOS manages the consular processing of immigrant visas. Applicants attend visa interviews at U.S. embassies or consulates in their home countries.
Ok, we defined their respective roles but don’t think just because that’s what they are supposed to do, that is all they will do.
As Immigration Attorneys we have seen firsthand how these agencies often overstep and exceed their authority. For example, USCIS regularly (more so under the prior administration) challenges the prevailing wage. Well hold on, that’s not their job. Dol determines the appropriate wage. Despite this USCIS has attempted to argue that certain positions are not filed under the correct wage or the SOC Code. I have seen DOL try to argue that a green card candidate is not qualified at the labor certification/PERM stage, even though USCIS is responsible for determining whether an applicant is qualified or not.
Here’s an example of how the three agencies are involved in a case. The example is for an employment-based green card.
John is from the UK and has found an employer in the US willing to sponsor him for a green card for future employment for the position of software developer. His immigration journey involves the approval processes of DOL, USCIS, and DOS.
Firstly, his employer must obtain a certified labor application from the DOL to demonstrate that they have made a good faith effort to recruit U.S workers and that there are no qualified U.S workers willing and able to fill the position. This includes requesting a prevailing wage and applying to the DOL for certification. DOL will review the requirements for the position and ensure that the Employer has carried out the necessary recruitment activities.
Once DOL certifies the labor application, the employer shifts focus to USCIS by filing an immigrant petition (Form I-140). In doing so the Employer must show they have an approved labor certification, that John is qualified for the position of Software Developer and that they have the financial ability to pay the determined wage. Because John is outside of the US the Employer will request that the approved I-140 be sent to the US Consulate in London.
Upon I-140 approval, John will need to attend an interview in London at the Consulate, and this is where DOS comes in. The consulate, under DOS jurisdiction, must now determine whether John is eligible to be issued an immigrant visa. Barring any disqualifying factors, such as a criminal record, DOS issues the visa. However, bear in mind that just because DOL has issued a certified labor, USCIS has approved the I-140, this doesn’t automatically mean that John will be issued a visa. John could be denied a visa if he does not meet the admissibility criteria.
After arriving in the U.S. using the issued visa, USCIS finalizes the process by granting John a green card, signifying his permanent resident status.”
If you have any questions regarding the above, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.