Permanent Residency through Employment
The following is a general description of the process involved in sponsoring a foreign employee for permanent residency, including the major duties and obligations of a sponsoring employer.
1. Alien Employment Certification from the Department of Labor
It is first necessary to obtain a "labor certificate" from the U.S. Department of Labor to certify that the foreign worker's permanent employment in the U.S. will not displace a U.S. worker. This process requires the company to conduct a good faith recruitment of U.S. workers for the position the foreign worker will be filling (eg. newspaper ads, internet postings, etc.). The salary offered must meet the prevailing wage paid to a U.S. worker in the same position in the same geographical area or the actual wage paid by the employer to other workers in the same position, whichever is higher. The recruitment effort and the results of the recruitment (applications received and screened or interviewed) must be fully documented.
If no U.S. workers are found who are able, willing, qualified or available for the position, then the Department of Labor will approve the alien employment certification. The approved labor certification is not transferable to another company or to a different position within the company. Furthermore, it does not constitute authorization to work in the U.S. The labor certification only indicates that a test of the labor market has been conducted and that no U.S. workers have been found to perform the job. Additional information on the labor certification process can be found at
http://www.foreignlaborcert.doleta.gov/perm.cfm
Labor Certification exempt occupations: It is important to note that certain positions will not require labor certification if the legal requirements for classification under the immigration law are met. These include,
- Persons of Extraordinary Ability
- Outstanding Professors and Researchers
- International Executives and Mangers transferred from abroad
- Persons with advanced degrees or of exceptional ability whose work is in the National Interest (National Interest Waiver)
- Religious Workers
- Investors who invest $1 million (or $500,000 in certain areas) and create employment for 10 U.S. workers
- Registered Nurses & Physical Therapists (deemed shortage occupations by the Department of Labor)
2. Immigrant Visa Petition/U.S. Citizenship and Immigration Services (USCIS) (Form I-140 for Groups 1-3)
Upon approval of the labor certification application, the second stage in the permanent residency process requires that the employer file a visa petition with the USCIS to designate a specific visa classification for the foreign worker. For labor certification exempt occupations, filing of the visa petition is the first step in their permanent residency processing. There are five employment-based immigrant visa categories (EB-1 through EB-5).
Group 1 consists of three sub-groups of priority workers. Labor certification is not required for Group 1 petitions. The three sub-groups are:
EB-1(1): Persons of extraordinary ability in the arts, sciences, education, business or athletics
EB-1(2): Outstanding professors and researchers
EB-1(3): Multinational executive and manager transferees
Group 2 includes professionals with advanced degrees or the equivalent, and persons of exceptional ability. Labor certification is required for this category, unless the sponsor worker can qualify for a national interest waiver:
EB-2(1): Professionals holding Advanced Degrees
EB-2(2): Aliens of Exceptional Ability
Group 3 includes members of the professions holding Bachelor's degrees, skilled workers with at least two years of experience and/or training, and other workers having less than two years vocational preparation. Labor certification is required for Group 3 (except Registered Nurses and Physical Therapists).
EB-3(1): Skilled Workers (at least 2 years experience or training)
EB-3(2): Professionals with a Bachelor degree or the equivalent
EB-3(3): Other Workers (less than 2 years experience or training
Group 4 (EB-4 Form I-360) consists of Religious Workers who are members of a religious denomination having a bona fide religious organization in the U.S., and who possess two years prior experience. Religious workers include ministers, religious professionals and workers in a religious vocation or occupation. Labor Certification is not required.
Group 5 (EB-5 Form I-526) Investors are those that invest a minimum of $1 million in a new commercial enterprise and create ten jobs for U.S. workers. The amount of investment is $500,000 if the enterprise is in a targeted employment area. A targeted employment area is generally a rural area or an area of high unemployment. A labor certification is not required.
With the filing of the immigrant visa petition it is necessary to document the foreign worker's qualifications for the position and evidence that the legal requirements for the immigration classification being sought are satisfied. In addition, for many of the classifications, the employer, must provide financial information documenting ability to pay the salary offered.
NOTE : Concurrent Filing of an I-140 visa petition and I-485 Adjustment of Status application is now an available option that can speed up the permanent residency processing time.
3. Adjustment of Status Application (Form I-485) with U.S. Citizenship and Immigration Services (USCIS) (TRAVEL RESTRICTIONS IMPOSED) OR Consular Processing at U.S. Embassy/Consulate in Home Country
After the visa petition is approved, the visa bulletin issued monthly by the U.S. Department of State must be checked to ensure that an immigrant visa is currently available in the employment category and for the foreign worker's country of birth. There are limited numbers of visas available each year for each employment category and certain countries may exceed their quota resulting in a temporary waiting period. At this time visas are available for all employment based categories.
If a visa is immediately available, the foreign worker, along with his spouse and minor, unmarried children can proceed with the final step in filing for permanent residency. An individual is eligible to adjust to permanent resident status without leaving the U.S. if he or she entered the U.S. legally, never worked without authorization, and always maintained valid temporary visa status. Under limited circumstances, certain individuals who have failed to maintain status, worked without authorization, or entered illegally may still qualify for adjustment of status upon payment of a $1,000 penalty fee (Such cases are covered by a law commonly called 245(i)). These cases should be reviewed carefully by an immigration specialist to determine whether they qualify. Employment based permanent residency applications are filed with one of four USCIS regional service centers. A personal interview is normally waived for employment based cases, however, occasionally a case is referred to the local USCIS district office to be scheduled for interview.
The application for adjustment of status is filed with a medical exam performed by a physician authorized by USCIS, and fingerprints will be scheduled at some point during the processing period for clearance by the FBI and other security agencies. While the permanent residency application is pending, travel outside the U.S. is restricted unless an advance parole or travel document is first obtained by filing an application (Form I-131) with USCIS. However, there is a USCIS regulation that provides for an exception to the need for a travel document for applicants holding a valid H or L visa. Consult with your attorney to determine whether you are eligible under this exception. An application for work authorization may also be filed with the adjustment of status application. .
Under recent legislation, if an I-485 adjustment of status application remains pending over 180 days and the I-140 petition has been approved, the foreign worker may be able to continue the green card processing with a new employer in the same or similar occupation. This is commonly referred to as 180 day portability. The law is vaguely written and does not address with certainty the various circumstances and timing in which a foreign worker may no longer be employed by the original sponsoring employer. It is highly recommended that an immigration attorney be consulted if this situation arises to determine whether the 180 portability provision applies.
If the foreign worker is not eligible for adjustment of status or prefers to have an immigrant visa interview conducted at the U.S. Embassy or Consulate in his/her home country, arrangements can be made for immigrant visa consular processing abroad through the Department of State's National Visa Center.
Below is a listing of some of the common employment based U.S. immigrant visa classifications and links to detailed information provided by the U.S. Department of State and U.S. Citizenship and Immigration Services.
Quan, Burdette & Perez is not responsible for the content of the articles. Changes in immigration laws and policies occur frequently and the articles may not be immediately updated.
Pleased be advised that interpretation of general information should not take the place of legal advice provided by an experienced immigration lawyer familiar with the specifics of your case. |
