Employees meeting certain requirements can often obtain employment-based permanent residency, i.e. an employment green card. A qualified immigration attorney can guide you through this process and help obtain an employment green card as quickly and smoothly as possible.
Employment Green Card Labor Certification (Stage 1)
Obtaining employment permanent residency typically begins with an Application for Alien Employment Certification (or “labor certification”) filed with the U.S. Department of Labor (DOL).
To obtain an approved labor certification, the employer must be able to demonstrate that there are no U.S. workers who are qualified, willing and able to perform the job offered to the foreign national. The employer must undertake a formal recruitment effort to test the labor market prior to filing the labor certification application. If no qualified U.S. workers are found, the application may be filed. The current labor certification process is governed by the requirements of the Program Electronic Review Management (PERM) system.
PERM involves the submission of a labor certification application to the DOL that contains certain employer attestations regarding the job opportunity and the employer’s recruitment activities, which are subject to a post-filing audit. A pre-filing PERM recruitment campaign for a professional position requires two advertisements in a Sunday newspaper, a 30-day job order with the State Workforce Agency, and three additional recruitment steps selected from the following options: the employer’s website, a job search website, a private employment firm, local and ethnic newspapers, the employer’s employee referral program, and on-campus recruitment activities.
Once a labor certification application has been approved by DOL, the next step in obtaining an employment green card is for the employer to file an employment-based immigrant visa petition (Form I-140) to classify the beneficiary in the appropriate immigrant preference category.
There are limited exceptions to the labor certification requirement. For example, individuals who qualify as persons of extraordinary ability, outstanding professors or researchers, or multinational managers or executives are exempt from the labor certification process and may proceed directly to Stage 2 in the employment permanent residency process.
Employment Permanent Residency Preference Petitions (Stage 2)
Employment-based immigrant visa petitions fall into five preference categories:
|Preference Categories||Requirements To Qualify|
|1st Preference||Persons of Extraordinary Ability, Outstanding Professors or Researchers and Multinational Executives and Managers(Labor Certification Exempt)|
|2nd Preference||Members of the Professions with Advanced Degrees and Persons of Exceptional Ability (Labor certification exempt if work is deemed in the National Interest)|
|3rd Preference||Members of the Professions, Skilled Workers and Unskilled Workers|
|4th Preference||Members of Certain Religious Organizations(Labor Certification Exempt)|
|5th Preference||Immigrant Investors (Labor Certification Exempt)|
In most cases, the sponsoring employer must file an employment-based immigrant visa petition (Form I-140) on behalf of the foreign national to request classification in the appropriate employment-based preference category. An approved labor certification is required for classification in the second and third preference categories, with limited exceptions.
There are a limited number of immigrant visas, including employment-based green cards, available in each preference category each year.
The U.S. Department of State (DOS) controls the allocation of employment-based immigrant visas under the quota. Each month DOS releases a Visa Bulletin announcing the availability of immigrant visas, according to priority dates for each of the employment-based preference categories. If a labor certification has been filed, the date of filing the labor certification with DOL determines the priority date. If a labor certification is not required, the date of filing the I-140 preference petition with USCIS determines the priority date.
Application for Immigrant Visa or Adjustment of Status to Permanent Resident (Stage 3)
The final stage is the application for permanent residence for employment. The foreign national may file an Application to Adjust Status (Form I-1485) (“adjustment of status”) with the United States Citizenship and Immigration Services (USCIS) or apply for an immigrant visa at a U.S. consulate abroad (“Consular Processing”).
Employment green card applications may only be filed if an immigrant visa number is available. The availability of immigrant visas is published monthly by the Department of State Visa Bulletin, which indicates the availability of immigrant visas based on the foreign national’s country of birth, preference category, and priority date (see discussion of preference categories above). If the priority date is not current, i.e., “retrogressed”, the foreign national must wait until it is current to apply for permanent residence.
If an immigrant visa number is available at the time of filing the immigrant visa petition (Form I-140), eligible applicants lawfully present in the U.S. may concurrently file the adjustment of status application (Form I-485). At this stage, the foreign national’s dependent family members may also apply for their derivative immigrant visas, and if filing for adjustment of status in the U.S., may also obtain travel and employment authorization.