Employment-Based Permanent Residency (Green Card)
GENERAL INFORMATION PERMANENT U.S. RESIDENCY BASED UPON EMPLOYMENT:
Aliens can be sponsored for permanent residence in the United States by an American employer. Approximately 140,000 employment-based permanent residency visas are granted each year. Generally, the alien is sponsored to fill a specific employment position for which the employer is unable to find an American or permanent resident to fill. These positions are specialty occupations requiring skilled individuals. There are three employment-based categories, each allotted 40,000 visas a year, which have differing requirements:
EB1: First Employment-Based Preference
The first preference category does not require labor certification for the position the alien is going to fill. This category is open to managers and executives subject of international transfer to the United States; outstanding professors and researchers with universities or employers with established research departments; aliens of "extraordinary ability" in the sciences, arts, education, business, and athletics.
EB2: Second Employment-Based Preference
The second preference require a labor certification for the position the alien seeks to fill. This can be waived in certain circumstances in the national interest (i.e. medical doctors who will work in medically under served areas). This category is open to aliens of "exceptional ability" in sciences, arts, or business; and advanced-degree professionals.
For more information on EB2 requirements, click here, or click on the PERM Labor Certification link to find out more about this process.
EB3: Third Employment-Based Preference
The third preference also require a labor certification for the position the alien seeks to fill. This category is open to the following: Professionals with bachelor's degrees; Skilled workers; and Unskilled workers.
For more information on EB3 requirements, click here, or click on the PERM Labor Certification link to find out more about this process.
- Labor Certification (**for more information on the PERM Labor
Certification process, click here.)
In second and third preference cases, the employer must first get a certification from the Department of Labor that qualified U.S. workers have been recruited for the position and are unavailable. There are strict Department of Labor guidelines which must be adhered to for the issuance of a labor certification. This process is now referred to as "PERM Labor Certification" and the processing time varies depending on the specific circumstances of the case as well as DOL issues.
The employer must be offering the alien a "permanent position". Moreover, the employer must be able to demonstrate that they have the ability to pay the alien's salary. The alien must be able to demonstrate that he has the requisite qualifications for the job at the time the papers are initially filed. Accordingly, the employer must verify that the alien has the credentials to meet the minimum requirements for the offered position prior to the filing of the labor certification application.
EB5: Fifth Employment-Based Presence (Investors)
The fifth employment-based preference is set aside for alien investors in new commercial enterprises. This category is allotted 10,000 visas per year, and generally requires that the investor invest or be actively in the process of investing at least $1 million in the enterprise. This figure can change depending on the area of the investment. For example, an investment in a "targeted employment areas" may be as low as $500,000 while "high employment areas" may require an investment as high as $3 million.
PERMANENT RESIDENCY BASED ON LABOR CERTIFICATION
Applying for permanent U.S. residence based upon an employment offer is generally a three-step process involving the U.S. Department of Labor and the U.S. Citizenship & Immigration Services.
The employer must first obtain labor certification for the offered position from the U.S. Department of Labor. Labor certification is granted only in those cases where the employer can prove that qualified U.S. workers are not able, available, and/or unwilling to accept employment in that position. The employer (or attorney of record on behalf of the employer) submits an ETA 9089 Application for Permanent Employment Certification on behalf of an alien employee to the U.S. Department of Labor. Upon filing the application, the application is issued a “priority date” for the alien’s permanent residence case. The priority date is the date that will be used to determine when an immigrant visa will become available after labor certification has been granted.
The U.S. Department of Labor reviews the application and determines if all the key elements in the application are acceptable. If U.S. Department of Labor finds that the employer’s application is unduly restrictive or has excessive minimum requirements it will contact the employer. If everything is acceptable, the U.S. Department of Labor had initially set a “target” date to certify the application within 90 days. However, current processing times are hovering anywhere from 300-365 days. Cases subjected to random or targeted audits are taking on average 1-2 years for processing.
Once an employer has obtained labor certification, the employer may move on to the second step of the permanent residency process which involves the filing of an I-140 Petition for Immigrant Visa with the U.S. Citizenship & Immigration Services (USCIS). The employer must submit evidence that a position is still available for the employee and that the employer can pay the offered wage. The alien’s educational and experiential documentation is submitted with the I-140 petition, along with relevant tax documetation. Current processing time for an I-140 petition is approximately 60-400 days.
The final step of the permanent residency process is called the Adjustment of Status (I-485 stage.) If the permanent visa numbers are available for the individual’s particular classification, the approved I-140 petition is filed with an I-485 application for adjustment of status for the alien worker and each member of his/her immediate family. An alien’s “priority date” determines whether an immigrant visa is immediately available. An application for adjustment for permanent residency can only be filed if an immigrant visa is immediately available for that alien. The current processing time of the I-485 application with an available visa is approximately 365 to 700 days. Upon approval of the I-485 application, the alien worker will become a permanent resident of the United States.
*****As of 07/31/02, a change in the Immigration Laws will allow Steps 2 & 3 to be done simultaneously if the Priority Date is current. Hence, the I-140 and I-485 can be filed together, but ONLY if the Priority Date is current.