Employment Based Green Card
There are several ways to get a green card. You could go through a sponsoring family member, use investment funds, or even gain asylum. However, one of the more popular methods is to obtain an employment-based green card by having your employer sponsor you.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).
Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with USCIS.
Within this preference there are three sub-groups:
- Persons of extraordinary ability in the sciences, arts, education, business, or athletics: Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer.
- Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
- Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas.
All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later).
A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest.
There are two subgroups within this category:
- Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.
- Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.
In addition, you could also apply for the EB-2 National Interest Waiver, or NIW. This is a special situation in which the holder can bypass the PERM Labor Certification and job offer requirements, meaning that applicants can self-petition for the NIW. However, you need to show that your work is beneficial enough that it would be in the nation’s best interest for the USCIS to waive the PERM and job offer requirements.
An EB-2 visa lawyer can help you identify which subgroup may be more appropriate for your situation.
Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas.
All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, a Schedule-A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.
There are three subgroups within this category:
- Skilled workers are persons capable of performing a job requiring at least two years” training or experience;
- Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree; and
- Other workers are those persons capable of filling positions requiring less than two years” training or experience.
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Certain spouses and children may accompany or follow-to-join the principal special immigrant.
Different types of special immigrants provided for under immigrant law are listed below:
- Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization
- Minister of Religion
- Certain Employees or Former Employees of the U.S. Government Abroad;
- Employee of the Mission in Hong Kong
- Certain Former Employees of the Panama Canal Company or Canal Zone Government
- Certain Former Employees of the U.S. Government in the Panama Canal Zone
- Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979
Interpreters and translators of Iraqi or Afghan nationality who have worked directly with the United States armed forces or under Chief of Mission authority as a translator or interpreter for a period of at least 12 months and meet requirements.
This classification has an annual numeric limitation of 500 visas through FY 08. B. Iraqis who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year after March 20, 2003, and have experienced an ongoing serious threat as a consequence of that employment.
This provision was signed into law in January 2008, creating 5,000 special immigrant visas each year for the next five years. The Department of State and the Department of Homeland Security are establishing regulations and procedures to permit applications under the new legislation to begin as soon as possible.
At this point, USCIS is unable to accept applications for this category of visa until those regulations and procedures have been implemented.
- Certain Foreign Medical Graduates (Adjustments Only);
- Certain Retired International Organization employees;
- Certain Spouses of a deceased International Organization Employee;
- Juvenile Court Dependent (no family member derivatives);
- Alien Recruited Outside of the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces;
- Certain retired NATO-6 civilians;
- Certain surviving spouses of deceased NATO-6 civilian employees;
- Alien beneficiary of a petition or labor certification application filed prior to Sept. 11, 2001, if the petition or application was rendered void due to a terrorist act of Sept. 11, 2001;
- Certain Religious Workers.
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS.
To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
Employment Based Green Card Labor Certification
A very important step in almost every employment based green card process is to have an employer obtain a PERM Labor Certification on your behalf. This is a procedure that involves having your employer go through an extensive recruitment process in order to ensure that you are not displacing any qualified U.S. workers.
Your employer will first need to file to have the prevailing wage for your position determined according to the location and others that are similarly employed. Once that determination is received, your employer will need to run three kinds of advertisements:
- Job order: this must run for at least thirty days
- Newspaper ads: this must be in a high-circulation paper on two separate Sundays
- Three auxiliary ads posted in areas like the internet, radio, or college campuses
After the ads have run their course, thirty days must be given for potential applicants to respond. During this time, your employer must consider the qualified candidates and give reasons for rejecting each one.
If no candidates take the position, then your employer must file an ETA-9089 form with the Department of Labor. During this step, there is always the possibility that your employer will be audited either randomly or through targeted process.
Once the ETA-9089 is approved and the PERM Labor Certification received, you can begin the petitioning process for your employment based green card.
Keep in mind that the PERM is not required for EB-1 green cards as well as the EB-2 National Interest Waiver.
What About Audits?
The Department of Labor performs two kinds of audits: random audits designed to maintain program integrity and targeted audits to stop employers from taking advantage of the system.
Targeted audits can be triggered by incomplete or inconsistent information on the advertising report. It can also occur if the Certifying Officer (CO) determines that the report does not match what was predicted for your industry and geographic location.
If your employer is audited, this will add several months to your PERM processing time. Be sure to work alongside your immigration attorney to make sure that the audit is handled appropriately and that your employment-based green card is not jeopardized.
Individual Labor Certification
The applicant must complete DOL Form ETA-750B, Statement of Qualifications of Alien, and send this completed form to the prospective employer who completes Form ETA-750A, Application for Alien Employment Certification, Offer of Employment.
The prospective employer submits both forms to the local office of the State Employment Service in the area in the United States where the work will be performed. The employer will then be notified by the appropriate regional office of the DOL of its approval or disapproval.
Schedule A Designation
The Department of Labor has made a schedule of occupations for which it delegates authority to USCIS to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses.
Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-750 in duplicate to USCIS along with the I-140 petition.
Labor Market Information Pilot Program
The Immigration Act of 1990 provides for the DOL to establish a Labor Market Information Pilot Program which will define up to ten occupational classifications in which there are labor shortages.
For aliens within a listed shortage occupation, a labor certification will be deemed to have been issued for purposes of an employment-based immigrant petition. USCIS can provide further information.
All intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from USCIS.
If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with USCIS for the appropriate employment-based preference category. If you are applying for the EB-5 investor green card, you will need to file the I-526 instead.
The petition usually takes an average of six months to be processed, though it depends on the service center that is processing your petition. In many cases, the I-140 can be expedited to 15 calendar days if you choose to use the optional premium processing service for an additional fee.
However, petitions submitted for the EB-1C and EB-2 NIW are unavailable for the premium processing service. It is also important to note that premium processing does not increase your chances for approval and cannot be used to expedite any other step in the employment-based green card process.
Each year, there are a limited number of green cards that are available for each category according to each particular country. If more citizens of a particular country apply for one category, then that category will be oversubscribed, and a backlog will build. From there, the USCIS will go in chronological order according to when the petition was received.
The filing date of a petition becomes the applicant’s priority date. Green cards cannot be issued until an applicant’s priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Check the current visa bulletin released monthly by the Department of State for the latest priority dates.
How Our Green Card Attorneys Can Help
There are several paths to becoming a legal permanent resident through an employment-based green card. Choosing the right one, determining if you qualify, and successfully completing all of the steps can be very difficult without the help of a dedicated green card attorney.
Here at SGM Law Group, our immigration lawyers have years of experience helping qualified individuals immigrate to the U.S. through their employment. We take care of the entire process from matching your qualifications to the right green card to filing your petition and making sure that all obstacles are handled professionally.
If you would like to speak with one of our immigration attorneys to start your road to a green card, schedule a consultation with our office by filling out this quick form.
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