There are many ways to immigrate to the United States based on an employment offer or job-related opportunity. To do so, however, it’s your responsibility as the foreign worker to demonstrate that no other domestic worker is available, or qualified to take the position. This is known as the Labor Certification process and there are many steps required in order to fulfill the requirements. In this post, our employment visa lawyers will explain the available options to obtain an employer-sponsored green card as well as documents necessary.
Employer Seeking a Foreign Worker
The employer-sponsored green card process normally begins with the employer obtaining an Application for Permanent Labor Certification and getting it approved by the Department of Labor (DOL). Once the DOL has approved the labor certification, it is the responsibility of the employer to then file Form I-140, on behalf of the foreign employee.
Labor Certification Steps
1. Prevailing Wage Determination
The first step as the employer is to request a prevailing wage determination (PWD) via the online iCert database. What this system does is determine how much people in those jobs are being paid.
2. Necessary recruiting and advertising of position in the U.S.
Based on DOL regulations the employer must announce the position in statewide databases and the appropriate advertising outlets prior to granting it to a foreign laborer. The purpose of this step is to ensure that employers cannot take advantage of this step to displace U.S. workers with less expensive employees abroad.
3. Filing the PERM Labor Certification
After the recruiting period is over and all criteria have been met but no willing Americans are available or willing to take the job you can then submit a PERM Labor Certification application to DOL.
PERM Processing Time
Depending on whether or not your case is audited, PERM filing may fluctuate. An unaudited case can take approximately eight months from the time of filing to certification while an audited case can take fourteen months from filing to certification.
On the other hand, if your PERM is audited, you may find yourself waiting up to a year and a half. Click here to learn more about PERM Audits and how you can avoid one during the employer-sponsored green card process.
The Next Steps
So for which employees can you file for an employer-sponsored green card or comparable visa? There are a few categories that a foreign employee may fall under in order to qualify and in some instances, they may be residing in or outside of the United States. With the EB categories, there are many subcategories depending on occupational skills and eligibility requirements. Let’s take a look at them below:
Employment Green Card Options
EB-1 Green Card for Priority Workers
There are three main subcategories for EB-1 priority workers and they include:
- Extraordinary achievement within the sciences, arts, education, athletics or business.
- Outstanding professors and researchers with a minimum of three years of experience either teaching or involving research.
- Executives and managers employed a minimum of one out of the three preceding years by an overseas parent, subsidiary or branch of the main employer.
Note that no PERM labor certification is required for the EB-1 classification. However, it’s the employer’s responsibility to submit the job offer and file a petition. The only employment-based green cards that do not require a sponsoring employer are the EB-1A for those with extraordinary achievement and the EB-2 with a National Interest Waiver.
Processing time for an EB-1 green card is largely dependent on the individual applicant and their ability to submit the proper paperwork in a time effective manner. In addition, the USCIS fee for outstanding researchers is $580 plus $1070 Adjustment of Status. This price doesn’t include the attorney fee.
EB-2 Green Card for Advanced Degree Holders
Unlike the EB-1 category, there are only two subcategories in this employment second preference category and they require a labor certification approved by the Department of Labor and/or Schedule A designation or proof that there is a shortage in the labor market.
- Professionals who possess advanced degrees beyond a baccalaureate or a baccalaureate plus five years of experience.
- Exceptional ability in the arts, sciences, or business.
Our EB-2 visa lawyers can best determine whether your employee meets the necessary criteria to obtain this visa. The EB2 visa lawyers at SGM can also put precautions in place to avoid unnecessary delays.
For those that do not have a sponsoring employer, you may qualify for a National Interest Waiver in the EB-2 category.
EB-3 Professional and Skilled Workers
Individuals who fall under the EB-3 category include professionals with:
- Bachelor’s degrees or foreign equivalents
- Foreigners with specialized skills which requires min. 2 years of training.
The EB-2 process for “other workers” offers the ability for a wide range of applicants to petition. Despite this flexibility, only about 10,000 are actually issued each year and the Labor Certification process may have some challenges getting approved. Again, an employer-sponsored green card through EB-3 may be appropriate for some but not all individuals. It’s best to consult an immigration attorney to explore this option further.
EB-4 Religious Workers Category
This category covers a wide range of applicants. However, it is generally intended for individuals of non-profit religious denominations. In order to file in the EB-4 religious workers category, the petitioner must file Form I-360 if working with for an employer. One of the biggest advantages of an EB-4 visa is that the process is quite fast. You can obtain a visa/ or change of status immediately after the petition is approved. No test of the job market is necessary in this case. so the entire process can take only a few months.
Employer-Sponsored Green Card Cost Responsibility
Many employers often wonder what the costs are for sponsoring a green card for a foreign worker. While many of the costs vary depending on the type of work, the circumstance, and worker coming overseas, there are specific obligations that apply to them all.
First of all, the PERM process which is required for nearly all green card options but be paid by the employer. What fees are associated with this process?
- Any advertising costs incurred
- Legal fees from retaining an attorney
- Additional costs associated with case issues or audits
No matter whether you apply for the EB-1 or the EB-3, all employer-sponsored green cards are subject to priority dates. Your priority date is the date that the USCIS obtains your green card petition. Then, you will need to check this date against the final action dates given in the monthly visa bulletin released by the Department of State.
Once your priority date matches or passes the final action date given in your category and country, your priority date will be considered “current” and you can move onto the next step in the process. If your category already says that it’s current, then you will be able to move forward as soon as your I-140 has been approved.
You may notice that some countries have much longer wait times than others. This is due to the fact that there is a limited number of green cards that are given to any one chargeability area according to each category. Once that area has exceeded the cap, a backlog develops. This is why more populated countries such as India and China have longer wait times than others.
I-140 Processing Timeline
On average, the I-140 takes about six months to be processed, though this is heavily dependent on the caseload of your particular USCIS service center. The only way to expedite this process is with an optional service called premium processing. For an additional fee of $1,410, you can shorten your I-140’s processing time to 15 calendar days. If the USCIS fails to adjudicate your petition in the allotted time, you will receive a refund on your premium processing fee and your petition will be processed normally.
Keep in mind, however, that not all employer-sponsored green cards can make use of premium processing. In particular, the EB-1C, EB-2 National Interest Waiver, and the EB-4 cannot be used with premium processing.
Adjustment of Status vs Consular Processing
Once your I-140 has been approved, you will be presented with two choices. You can either adjust your status or use consular processing to become a legal permanent resident.
Adjustment of status – this is a relatively simple process that requires you to file an I-485 application to Register Permanent Resident or Adjust Status. This form usually takes about six months to process and can cost anywhere between $750 and $1,225 depending on your age. However, adjusting your status is only available to those that are already in the U.S. under a nonimmigrant status. If you are outside the U.S., you will need to go through consular processing.
Consular Processing – this process is a little bit more involved. You must first make an appointment with the U.S. Consulate or Embassy in your home country. When your appointment date comes, you need to travel there and participate in an interview with an immigration consular officer. If the officer approves your case, an employer-sponsored green card will be attached to your passport and you will be able to enter the U.S. as a legal permanent resident.
Employer-Sponsored Green Card: Begin the Process
The best way to avoid the various pitfalls and hazards of getting an employer-sponsored green card is to make sure you have an expert on your side. By retaining the services of an experienced green card attorney, you can make sure that you’re on the fast track to your green card.
Interested in starting the green card process for yourself or a new or prospective worker? Our immigration attorneys can help you identify the most appropriate course of action for your particular situation. In particular, our EB-2 visa lawyers are well versed in all facets of employment-based immigration and can recommend the most cost effective route. To get started on your immigration journey, contact us today and fill out this contact form for a free initial consultation.