Employment-Based Green Card
Employers who intend to hire a foreign national permanently may sponsor him or her for lawful permanent residence, or what is known as a Green Card. Each fiscal year, 140,000 visas are allocated for this purpose. Green Cards are also subject to per country limits, controlling the number of visas available for any particular nationality. Due to these restrictions, employment-based visas are issued according to a preference schedule. Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. Visas are issued according to the preference category and the priority date of the petition. The process by which an employer sponsors the immigrant, subject to some exceptions, occurs in three distinct steps – the PERM, the Petition Approval, and the Visa.
Employment Based Preference Categories
First Preference (EB1): The first preference is reserved for foreign nationals who have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. To qualify, specific requirements must be met; however, no foreign labor certification (PERM) is required.
Second Preference (EB2): The second preference is reserved for members of the professions holding advanced degrees or persons of exceptional ability. Petitions in this category must generally be accompanied by an approved individual labor certification from the Department of Labor.
Third Preference (EB3): The third preference is reserved for skilled workers, professionals, and other workers. Typically a baccalaureate degree or at least two years of experience is required in a specific field in which qualified U.S. workers are not available. EB3 also requires labor certification and a permanent job offer.
Fourth Preference (EB4): The fourth preference is reserved for certain “special immigrants.” Special immigrants are limited to religious workers, broadcasters, former U.S. Government employees, Iraqi/Afghan translators, Iraqis/Afghanis who otherwise assisted the U.S. Government, foreign medical graduates, retired international organization employees, armed forces veterans or enlisted, or special immigrant juveniles.
Fifth Preference (EB5): The fifth preference is reserved for immigrants who can stimulate the U.S. economy through job creation or capital investment.
The PERM Application
In the first stage of employment-based Green Card sponsorship, the employer must test the U.S. labor market to ensure that admission of the foreign worker will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The employer accomplishes this by filing a permanent labor certification application via the Department Of Labor’s Program Electronic Review Management (PERM) system, demonstrating that it complied with prevailing wage and recruitment requirements. By certifying the PERM, the DOL affirms that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Upon filing the foreign labor certification, the immigrant’s priority date, or place in line, is set.
Immigrant Petition for Foreign Worker
Once the Department of Labor has certified the permanent labor certification, the employer must petition U.S. Citizenship and Immigration Services for approval to hire the foreign national permanently. This is done on Form I-140, Immigrant Petition for Alien Worker. The purpose of this petition is to prove that the employer complied with Department of Labor requirements, that it has the ability to pay the proffered wage, that the beneficiary is qualified to perform the proffered occupation, and that the beneficiary is eligible to become a lawful permanent resident. If these requirements are met, USCIS approves the petition, authorizing the employer to hire the foreign national, provided a visa number is available.
Lawful Permanent Residence
The final stage of the employment-based Green Card is the I-485 Application to Adjust Status. At this stage, the beneficiary must petition to change his or her immigration status from a nonimmigrant (temporary) to an immigrant (permanent) resident. This can only be done when the individual’s priority date and preference category is current. To receive approval to adjust, the beneficiary must prove that he or she entered the U.S. legally, that he or she received approval to adjust, and that he or she does not pose a threat to national security or public health. Once approved, the Citizenship and Immigration Service, if within the U.S., or the National Visa Center, if abroad, will grant lawful permanent residence.