Employment-Based Immigration: 3 Steps to Understanding the Process
US employers wishing to sponsor a foreign national for permanent residence face the daunting task of navigating the treacherous waters of US immigration law. The vast majority of applicants will fall into the EB-2 or EB-3 category. Sponsoring foreign workers for permanent residence on the basis of an EB-2 or EB-3 petition generally requires a three-step process:
1.) Has Labor Certification
2.) An immigrant visa petition
3.) file an application to adjust status to permanent resident.
EMPLOYMENT BASED IMMIGRATION
A US employer may sponsor an alien who is abroad or currently in the US under their employment for permanent residence (colloquially known as a “green card”) through an immigrant petition employment based.
There are 5 categories or preferences within the employment-based (EB) system, for example, EB-1, 2, 3, 4, and 5. The vast majority of applicants will likely fall into the EB-2 or EB-3 category. EB-1 petitions involve foreign nationals of extraordinary ability, multinational executives and managers, and outstanding researchers or professors. EB-4 and 5 relevant to certain special immigrants and investors respectively.
Generally, EB-2 and EB-3 Petitions require a labor certification from the Department of Labor and a job offer. Workers hoping to obtain permanent residence based on an EB-2 or EB-3 petition generally must go through a three-step process.
STEP 1: LABOR CERTIFICATION
A Labor Certification is a determination made by the Department of Labor that there are no US workers who are qualified and available for a position for which an employer is seeking a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and show that there are no qualified US workers yet available to fill that position. The Department of Labor then issues a decision on the application. The application for labor certification is called PERM (Electronic Review Management Program).
A Labor Certification is NOT an Application for Permanent Residence
Time and time again we have seen clients come to our office who have been incorrectly (sometimes mistakenly) led to believe that their labor certification is an application for permanent residence. Merely submitting a labor certification does NOT grant immigration status to a foreign worker or authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and H, etc.
STEP 2: THE VISA APPLICATION
Once a labor certification is approved, the employer will submit to the United States Citizenship and Immigration Services an alien worker petition, Form I-140 along with the certified labor certification and any necessary supporting documents.
The purpose of the visa application is to establish the relationship between the sponsoring employer and the foreign worker. Many times the employer will be required to present financial evidence indicating the employer’s financial ability to pay the foreign worker the prevailing wage established in the labor certification. The foreign worker must also show that he has the required years of experience and the level of education required by the labor certification. Depending on the minimum requirements established in the labor certification, the employer will make an application for EB-2 or EB-3 classification.
Who qualifies for EB-2?
A foreign worker qualifies for an EB-2 petition if he or she: 1.) has an approved labor certification, unless waived through a National Interest Waiver; AND 2.) she Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree, the foreign worker must have a baccalaureate degree accompanied by at least 5 years of progressive post-baccalaureate experience; OR 3.) Possesses exceptional ability and the job offer requires a person of exceptional ability.
Under the EB-2 classification, the Labor Certification requirement may be waived if the criteria can be met through documentary evidence that it is in the national interest to do so, called a National Interest Waiver.
Who qualifies for EB-3?
A foreign worker qualifies for EB-3 if he or she: 1.) has an approved labor certification, AND 2.) is a professional where the worker has a US bachelor’s degree or foreign equivalent degree and evidence that a bachelor’s degree is required for entry into the profession; OR 3.) is a skilled worker who has the minimum 2 years of training or experience requirement.
STEP 3 STATUS SETTING
A foreign worker may file an application for Adjustment of Status to obtain permanent residence if he or she is in the United States, has not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her. or she in her employment-based preference category, ie, EB-2 vs. EB-3. The visa numbers represent the numerical limitation established by the Department of State of persons authorized to immigrate to the United States within each preference category. If too many applications are submitted to subscribe to a particular EB category, then the visa numbers for that category may run out and lead to a backlog, ie a waiting list develops.
Concurrent Filing of Visa Petition and Adjustment of Status Application
The visa petition (Form I-140) and the application for Adjustment of Status (Form I-485) can be filed concurrently if the visa numbers in a particular employment-based preference are currently available. Otherwise, only the visa petition (Form I-140) can be filed, but not the Application for Adjustment of Status (Form I-485).
CONCLUSION
There are many elements to consider when hiring a foreign national. A missing item or procedural mishap is the difference between a successful and unsuccessful application or petition. A basic understanding of the immigration and labor certification process allows the employer or hiring manager to be better informed in making decisions to meet the challenges of global recruitment.
