Foreign nationals can obtain lawful permanent resident status ("LPR" or green card holder) through an offer of employment from a U.S. employer, or in certain cases, based on their skills, abilities, special circumstances or investment in a job-creating endeavor. The total number of employment-based immigrant visas available each year are divided into five preference categories, each with their own sub-categories, and each with their own specific requirements.
EMPLOYMENT-BASED PREFERENCES
First: (EB-1) Priority Workers
(1) managers and executives subject to international transfer to the United States (no labor certification required);
(2) outstanding professors and researchers with universities or private employers that have established research departments (no labor certification required)
(3) persons of "extraordinary ability" in the sciences, arts, education, business, and athletics (no labor certification required)(no offer of employment required)
Second: (EB-2) Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
(1) persons of "exceptional ability" in the sciences, arts, or business
(2) advanced-degree professionals
Third: (EB-3) Skilled Workers, Professionals, and Other Workers
(1) professionals with bachelor's degrees not qualifying in the second preference
(2) skilled workers (filling positions requiring at least two years of training and experience)
(3) unskilled workers.
Fourth: (EB-4) Certain Special Immigrants - religious workers, court dependents, returning residents and others
Fifth: (EB-5) Employment Creation
This process to obtain employment-based LPR status involves two, and in many cases, three distinct steps. The first step, in the second and third preference categories (with limited exceptions), is the Labor Certification, or "PERM." In this step, the U.S. employer tests the labor market to find a qualified, willing and able U.S. worker for the proposed position at the required wage. If none is found, the U.S. employer asks the U.S. Department of Labor to certify that finding.
Once the Labor Certification is obtained, and in all other cases where it is not required, the next step is to file the petition with U.S. Citizenship and Immigration Services. Form I-140 is used for the first, second and third preference, Form I-360 for the fourth preference, and Form I-526 for the fifth preference. In this step, USCIS determines if the foreign national ("Beneficiary" of the petition) meets the specific requirements for a particular preference category, and in certain instances, if the U.S. employer ("Petitioner") meets the specific requirements for a particular preference category to hire that Beneficiary. If all of the requirements are met, USCIS will approve the petition and the Beneficiary can proceed to the next and final step.
Because there are usually more applicants in each preference category than there are visas available each year, there is a waiting list to obtain a visa. A Beneficiary's place in line is determined by their category, date the petition was filed, called the “priority date” and in certain cases, their country of nationality. Each month the U.S. Department of State issues a Visa Bulletin providing an update on the current availability of each visa category. When the priority date is earlier than the date listed for the Beneficiary's visa, a visa is “immediately available” or “current” and the Beneficiary may continue the process of becoming a lawful permanent resident.
If the Beneficiary's priority date is current, they may continue one of two ways to convert the petition into permanent resident status. First, if the Beneficiary is currently in the United States and certain other conditions are met, they may apply for “adjustment of status” to gain their permanent resident status by filing their application, Form I-485 with U.S. Citizenship and Immigration Services and remaining in the United States throughout the process. If the Beneficiary is outside the United States, or if certain other conditions are not met, the Beneficiary continues the process through the U.S. Department of State and the U.S. Embassy or Consulate in their home country. This is called “consular processing.” The Beneficiary is issued an immigrant visa in their passport and when they arrive to the United States, they are admitted as a lawful permanent resident.
Contact the Law Offices of Michael Kohler, PLLC to discuss whether employment-based immigration is possible for you or your company.
