Employment Immigration

Employment based immigration, or the process of getting a green card through employment, is mostly sponsorship-based, with the employer as sponsor, or petitioner, and the intending immigrant or proposed employee as the beneficiary. There are three steps involved: an application for labor certification, or PERM application, with the Department of Labor, an immigrant petition, and the application for permanent residence. Not all steps are required in all cases. Representation by an experienced employment immigration lawyer is essential, to avoid time-consuming and costly pitfalls and mistakes.

The Preference Categories and Employment-Based Immigration

Employment-based immigration applications are divided into five preference categories, depending on the nature of the job. A limited number of green cards, also referred to as immigrant visas, are made available to each preference category every year. Sometimes, the number of applications exceeds the number of allotted green cards for that category, which can result in a waiting list of people whose underlying petitions have been approved and who are just waiting for a green card to become available. In those categories, green cards are only available for cases filed on or before the “priority date”, which can be checked in the Department of State’s monthly Visa Bulletin. Preference categories with no waiting list are referred to as being “current”.

The first preference category, or EB-1, is for “priority workers”: people with extraordinary ability in the arts, sciences, education, business, or athletics, outstanding professors and researchers, and multinational managers or executives. There is rarely a waiting list for green cards in first preference cases.

The second preference category, or EB-2, is for people whose employment in the US would be in the “national interest”, who have exceptional ability in science and arts, physical therapists and nurses, and for positions that require an advanced degree: either a masters’ degree or a bachelor’s degree plus five years’ progressive experience.

The third preference category, EB-3, is for positions that require a bachelor’s degree, as well as skilled and “other” (i.e., unskilled) workers.

The fourth preference category, EB-4, is for “special immigrants” – a mixed group which includes religious workers, some juveniles, employees of international organizations and members of the armed forces and people who have provided the armed forces overseas with specific types of support.

The fifth preference category, or EB-5, is for capital investors in the US (not to be confused with temporary investment visas, which are discussed in detail here).

The Labor Certification process, or PERM

The second and third preference categories are the most common, and so the procedure involved in those cases will be explained first.

In each of these categories, the employer must first test the labor market, to determine whether or there are any U.S. citizen or permanent resident workers available to fill the positions. This process is known generally as “labor certification”, or PERM, and is regulated by the Department of Labor, not USCIS. There are several steps involved in the labor certification procedure.

First, the employer obtains a prevailing wage from the Department of Labor, by filing on-line a Prevailing Wage Request, or Form 9141, which states the minimum requirements and duties of the position, and the geographic location of the job. Prevailing wage requests in PERM cases take a couple of months.

The employer also has to recruit for the position, through a number of steps specified by the Department of Labor, depending on the nature of the position, to determine whether or not there are any qualified US citizen or permanent resident workers willing to accept the position. This recruitment is probably the most important step in the labor certification procedure. Usually, the employer will not start the recruitment process until the prevailing wage has been received, in case it is too high and the job description has to be rewritten.

If there are no qualified US citizen or permanent resident workers willing to take the position at the salary specified in the Prevailing Wage Determination, the employer then files an Application for Permanent Employment Certification, or PERM (Form 9089) with the Department of Labor. This form lists the requirements and duties of the position, the qualifications and experience of the beneficiary, the recruitment steps that were taken, states that no qualified workers were willing to take the position, asks that the position be “certified” for the beneficiary. This form is a web-based application, which is extremely technical and which cannot be amended once it is filed, so that even minor errors can result in a denial. The PERM application takes a number of months to be adjudicated.

The I-140 Petition

If the labor certification application is approved, or certified, the employer then files an Immigrant Petition for Alien Worker, Form I-140, with USCIS. The purpose of the I-140 is to prove that the beneficiary actually has the experience and education required for the certified position, as stated on the PERM application, that the minimum requirements are standard for the position in question, and that the employer has the ability to pay the prevailing wage. This can require, at a minimum, letters from the beneficiary’s former employers confirming any prior experience, with the dates of employment, and the specific duties and responsibilities involved and skills gained, as well as an evaluation of the beneficiary’s foreign education credentials, to show that they are the equivalent to a US counterpart, along with the employer’s tax returns or other evidence of ability to pay the prevailing wage.

There is no requirement for a labor certification in the EB-1 “extraordinary ability” or EB-2 “exceptional ability” and “National Interest Waiver” cases. Instead, the I-140 is filed along with evidence that the beneficiary meets the standard for extraordinary or exceptional ability, or for a national interest waiver to be granted. EB-1 “extraordinary ability” cases also do not need a sponsor, meaning that the person can self-petition. However, the standard of proof in these cases is extremely high, and the applicant will need to show, through the evidence filed with the I-140, not only that he or she meets that very high standard but also that he or she will be able to continue to work in the US in the area of extraordinary ability.

The I-140 can take several months to be adjudicated. However, for an additional fee, this form can be filed using “premium processing”, which means that USCIS will then either adjudicate the I-140, or request further evidence, within 15 days of filing. If the there is a Request For Evidence (RFE), the I-140 will be adjudicated within 15 days of receipt by USCIS of the response to the RFE.

There is also no requirement for a labor certification or a sponsor in the EB-4 or EB-5 categories. Instead, for EB-4 cases, the application is filed on Form I-360, instead of an I-140, along with proof that the applicant satisfies the requirements for the position. In the EB-5 category, the petition filed is an I-526, Immigrant Petition for Alien Entrepreneur.

The I-485, Application for Permanent Residence

Once the underlying petition (whether I-140, I-360 or I-526) is approved, and the priority date becomes current, the beneficiary can apply for permanent residence, either by filing for adjustment of status in the US on Form I-485, or by filing for an immigrant visa at a US consulate overseas (known as consular processing). This consular processing normally happens if the beneficiary is outside of the US, or is not eligible to file for adjustment of status from inside the US. Whether consular processing overseas or adjusting status in the US, the beneficiary has to show that he or she is admissible to the US, and also that the job offer continues to be available. The most common grounds of inadmissibility are criminal convictions and criminal acts, and previous immigration violations. Some grounds of inadmissibility can be waived, by filing an application for a waiver on Form I-601 or I-601A, while others cannot. A fuller explanation and discussion of waivers can be found here.

The beneficiary is expected to work for the sponsoring employee for a reasonable period of time after getting a green card through employment. Failure to do so can raise a question of fraud later on, particularly when applying for naturalization. However, the beneficiary can change employers, or “port” from one employer to another, if the I-140 has been pending for more than 180 days and the application for permanent residence has not yet been approved.

Employment based immigration is a time-consuming, complicated, and expensive process, but for foreign-born employees of US employers, it may be the only way to obtain permanent residence. It is important to have a competent and experienced employment immigration lawyer guide both the sponsor and beneficiary through the process.

This article is intended to give a general overview of the process involved in employment-based immigration, and should not be considered as a guide, or as a substitute for legal advice.

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