Services > Permanent Visas (Green Cards) > Employment-based immigration
Foreign nationals may obtain permanent residence if they are able to establish that they have unique skills, or are being offered a job in the United States that will not displace a U.S. worker and have an adverse effect on the wages and working conditions of U.S. workers.
There is a limited number (“quotas”) of Immigrant Visas (“Green Cards”) available within a fiscal year. Whether a person can apply to become a Lawful Permanent Resident is controlled by whether he or she can satisfy the quota requirements.
In a case involving an employment-based preference, the priority date for quota purposes would be the date on which the application for labor certification (discussed, infra) was submitted, or, if a certification was not required, the date on which the preference petition was filed.
The employment-based category is organized into preferences:
This category does not require that the beneficiary obtain a certification from the Secretary of the Department of Labor (DOL) that the work in which he or she will engage will not displace U.S. workers.
The first subcategory within this preference (EB-1-A) is for persons of extraordinary ability in the sciences, arts, education, business, or athletics; the extraordinary ability has to be demonstrated by sustained national or international acclaim and by extensive documentation. Such persons are not required to have a prospective employer, but they must be entering to continue to work in their chosen field, and they must “substantially benefit prospectively the U.S.”
The second subcategory within the first preference is that of outstanding professors and researchers with a minimum of three years of experience in teaching or research who are recognized internationally in an academic discipline (a/k/a EB-1-B). To qualify, a foreign national must be coming for a tenure or tenure-track position, or for a comparable position at a university, institute, or with a private employer to conduct research. While no labor certification is required, there must be an offer of ongoing employment from the sponsoring employer.
The third and last subcategory for the first preference is for multinational executives or managers who have been employed abroad by the petitioning firm, corporation or legal entity, or its affiliate, parent or subsidiary in that capacity for at least one of the last three years prior to entry (a/k/a EB-1-C). As with the other two EB-1 subcategories, no labor certification is required; however, the prospective employer must petition for the beneficiary and submit a statement that the beneficiary will perform as an upper echelon executive or manager.
This preference is for members of the professions holding advanced degrees, or for persons with exceptional ability in the arts, sciences, or business who will substantially benefit the national economy or culture who are “sought by an employer in the United States.”
“Exceptional ability” is defined as an expertise beyond that which is normally found in the professions. An advanced degree could include a “Master’s Degree “or equivalent or bachelor’s degree plus five years of progressive work experience in their field.
This employment-based category is for skilled workers, professionals, and “other workers”–all of whom require approved labor certifications. “Skilled workers” are persons whose positions require a minimum of two years training or work experience. “Professionals” are positions requiring a baccalaureate degree or university equivalent. The “other workers” subcategory is for persons in positions that require less than two years training or experience to engage in the work.
This preference is for “special immigrant” visas. The categories include certain religious workers, Panama Canal Treaty employees, Amerasian children, certain employees of U.S. foreign service posts abroad, certain retired employees of international organizations admitted to the United States under the G-4 nonimmigrant visa, and dependents of juvenile courts.
This preference is for investors who will create employment positions or are in the process of investing. It provides conditional residency for those who, after November 29, 1990, invest $1 million in a new commercial enterprise that will employ at least 10 full-time U.S. workers.
Conditional residency means that the beneficiary receives residence for a two-year period.,. Within 90 days before the 2nd anniversary of the grant of conditional residence, the person should apply for removal of the conditions on residence and that the individual be granted LPR status.
An investment of $500,000 may qualify the investor if the investment is in one of the targeted employment areas that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average. Under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, a pilot investor program was established that relaxes the standards for the investor. The pilot program permits investments through “regional centers” with a relaxed job-creation requirement. The regional centers apply to USCIS demonstrating how the program will promote economic growth. Upon approval, a foreign investor’s investment in one of these centers may qualify him or her for the immigrant visa. This program has since been extended and is limited to 3,000 visas annually.
The availability of visas under the quota system is determined by the person’s “priority date. “In a case involving an employment-based preference, the priority date would be the date on which the application for labor certification (discussed, infra ) was submitted, or, if a certification was not required, the date on which the preference petition was submitted
In some of the preference categories a U.S. employer who is “sponsoring” an immigrant is required to obtain a certification from the Secretary of DOL that there are insufficient available, qualified, and willing U.S. workers to fill the position, and that the employment will not have an adverse effect on the wages and working conditions of similarly situated U.S. workers.
The requirement for this certification can be found at 8 USC §1182(a)(5)(A), INA §212(a)(5)(A). In the certification process the employer, through a recruitment effort, “tests” the market to establish that the person for whom a certification is sought meets the above statutory standard.
Please note that , as of July 16, 2007, employers must pay all costs related to labor certification process and prohibits payment by the alien beneficiary or others of employer-incurred costs related to the labor certification, including attorney’s fees.
Once the Department of Labor certifies the application for alien employment certification, the employer has to file a petition for the foreign worker with the U.S. Citizenship & Immigration Services within 180 days after the date the labor application is certified.
Once the worker’s filing date is reached for quota purposes and, depending on eligibility, he/she will either file for adjustment of status to permanent resident at an Immigration Service Office in the USA or process his/her immigrant visa at the American Consulate abroad. This will require a letter from the same employer who started the case indicating that the same job and, at least, the same salary approved by the Department of Labor is still offered to the worker
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Please be advised, that this is complex area of law, where there are a lot of exceptions and eligibility requirements that should be assessed before stating a case to avoid pitfalls that could derail your case. Thus, please contact us and schedule a consultation to discuss you particular case with one of our attorneys. During the consultation, the attorney will analyze your case and discuss all the immigration options that you or your employer may have.
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