Employment based Green Cards
Employment Based Immigrant Visas
Employment based immigration is a complex process that may involve a number of government agencies within the Federal Department of Labor, the State Department of Labor, the United States Citizenship and Immigrant Services (USCIS) and the Department of State (DOS).
It allows United States employers to sponsor for lawful permanent residence in the United States foreign nationals who have the skills, ideas, knowledge and talents needed in the United States.
The United States Department of Labor (DOL) issues permanent labor certifications for foreign workers based on strict criteria. These rules are set up to:
- Protect the rights of foreign workers.
- Protect the rights of similarly qualified American laborers.
- Create opportunities for employers to hire qualified foreign labor if that labor cannot be effectively obtained in the U.S.
To petition for labor certification, an employer must demonstrate that he or she cannot fill a position with qualified and able U.S. workers. In other words, the employer must show that there are no willing or able domestic laborers who are qualified and ready to do the work at what's known as the "prevailing wage" for the type of labor needed.
If the DOL approves the certification, the foreign worker then must submit an application to Citizenship and Immigration Services to get a Green Card to work in the U.S.
Pursuant to a regulation change in December 2004, applicants who file for labor certification after March 28, 2005 now go through what's known as the PERM process (PERM stands for "Program Electronic Review Management"). Essentially, this system allows the government to process applications electronically and thus review them faster and more efficiently.
For an employer to hire a foreign worker via labor certification, the following guidelines must be met:
- The employee must be hired for full time duty. Part time or seasonal workers will not qualify under this program.
- The job must be permanent. Foreign laborers can get other permits to work on temporary jobs in the U.S.; they just can't qualify for labor certification.
- The employer must be reasonable in his or her expectations for performance. (This clause prohibits domestic employers from requiring atypical and/or extraordinary skills or education from their foreign employees.)
- Employers must pay 100% (or more) of what's known as the prevailing wage for the position in question. This is the amount that the employer would pay a typical qualified U.S. worker (or in-company worker) for the same work.
This preference category includes individuals of "sustained national or international acclaim" with "extraordinary ability" in the sciences, arts, education, business or athletics; "outstanding professors and researchers" recognized internationally in a specific academic area; and "certain multinational executives and managers." Foreign nationals eligible for O-1 or L-1 nonimmigrant visa status often qualify for immigrant status under this category.
This category requires no labor certification as a condition of visa issuance.
This category includes members of the professions holding advanced degrees and aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
To qualify as a member of the professions the applicant must have an advanced degree, which the INS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The INS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a master’s degree. If the profession requires a degree higher than masters, the alien must have that degree.
This category consists of skilled workers, professionals and "other workers". Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession.
However, due to the shortage of registered nurses and physical therapists in the United States, the law currently provides for their automatic labor certification under Schedule A. Schedule A is a list of pre-certified occupations for which the Secretary of the Department of Labor previously has determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in such occupations. As a result, foreign Nurses and physical therapists that have passed the CGFNS exam or are certified as an NCLEX-RN or by FCCPT can obtain permanent residence without their petitioning employer needing to test the labor market prior to filing a visa petition on their behalf.
The final category of "other workers" means essentially unskilled workers.
Professionals and skilled workers are placed on the same waiting list for available visas. However, other workers are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.
Dependents of Employment Based Beneficiaries
The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.
Religious Workers and certain long time employees of the US government belong to this category. Also citizens of Iraq or Afghanistan that have worked for the US Armed Forces as a translator for more than a year can apply for this type of visa.
This website is designed for general information only. The information presented in this website should not be construed or relied on as legal advice or as the basis of a lawyer/client relationship.