U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. This article seeks to provide employers with a basic outline of the process.
EMPLOYMENT BASED IMMIGRATION
A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition.
There are 5 categories or preferences within the Employment Based (EB) system, e.g. 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, multi-national executives and managers, and outstanding researchers or professors. EB- 4 and 5 pertain 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 for permanent residency on the basis of an EB-2 or EB-3 petition must generally undergo a three step process.
STEP 1: THE LABOR CERTIFICATION
A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which an employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. Workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management).
A Labor Certification is NOT an Application for Permanent Residency
Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her 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 PETITION
Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents.
The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and education level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will make a petition for either EB-2 or EB-3 classification.
Who Qualifies for EB-2?
An alien worker qualifies for an EB-2 petition, if he or she:
• Has an approved labor certification, unless waived through a National Interest Waiver; AND
• Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the alien worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR
• Possesses an 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 the National Interest Waiver.
Who Qualifies for EB-3?
A foreign worker qualifies for EB-3 if he or she:
• Has a labor certification approved, AND
• is a professional where the worker holds a U.S. baccalaureate degree or equivalent foreign degree and evidence that a baccalaureate degree is required for entry into the profession; OR
• Is a skilled worker who possesses the minimum requirement of 2 years of training or experience.
STEP 3 ADJUSTMENT OF STATUS
A foreign worker may file an application for Adjustment of Status to gain permanent residency if he or she is in the United States, have not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her in his or her Employment Based Preference category, i.e. EB-2 vs. EB-3. Visa numbers represent the numerical limitation established by the State Department of persons allowed to immigrate to the United States within each preference category. If too many petitions are filed subscribing to a particular EB category, then visa numbers for that category may run out resulting in a backlog, i.e. a waiting list develops.
Concurrent Filing of Visa Petition and Application for Adjustment of Status
The visa petition (Form I-140) and application for Adjustment of Status (Form I-485) may be concurrently filed if visa numbers in a particular Employment Based preference are currently available. Otherwise, only the Visa petition (Form I-140) may be filed but not the Application for Adjustment of status(Form I-485).
There are many elements to consider when hiring a foreign national. A missed element or mishap in procedure 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 HR manager to be become better informed to make decisions in meeting the challenges of global recruitment.