Immigration through employment

An immigrant is a foreign national who has been authorized to live and work permanently in the United States. If you want to become an immigrant based on the fact that you have a permanent employment opportunity in the United States, or if you are an employer that wants to sponsor someone for lawful permanent residency based on permanent employment in the United States, you must go through a multi-step process.

  1. First, foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of USCIS' paths to lawful permanent residency.
  2. Second, most employment categories require that the U.S. employer complete a labor certification request (Form ETA 750) for the applicant, and submit it to the Department of Labor's Employment and Training Administration. Labor must either grant or deny the certification request. Qualified alien physicians who will practice medicine in an area of the United States which has been certified as underserved by the U.S. Department of Health and Human Services are relieved from this requirement.
  3. Third, USCIS must approve an immigrant visa petition, Form I-140, Petition for Alien Worker, for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition. However, if a Department of Labor certification is needed the application can only be filed after the certification is granted. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the United States.
  4. Fourth, the State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant. You can check the status of a visa number in the Department of State's Visa Bulletin.
  5. Fifth, if the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available.  If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office.

Eligibility

There are four categories for granting permanent residence to foreign nationals based upon employment:

  1. EB-1 Priority workers

    • Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
    • Foreign national that are outstanding professors or researchers
    • Foreign nationals that are managers and executives subject to international transfer to the United States
  2. EB-2 Professionals with advanced degrees or persons with exceptional ability

    • Foreign nationals of exceptional ability in the sciences, arts or business
    • Foreign nationals that are advanced degree professionals
    • Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved. Read more about this particular program.
  3. EB-3 Skilled or professional workers

    • Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category)
    • Foreign national skilled workers (minimum two years training and experience)
    • Foreign national unskilled workers
  4. EB-4 Special Immigrants

    • Foreign national religious workers
    • Employees and former employees of the U.S. Government abroad

How to Apply

If you are an employer wishing to sponsor (or petition) for a foreign national to work in the United States on a permanent basis, you must file Form I-140, Petition for Alien Worker. Detailed information is provided in the instructions for Form I-140. Filing requirements differ for each of the five categories.

The Department of State is responsible for providing visa numbers to foreign nationals interested in immigrating to the United States. To find out more about the Department of State's visa process visit the Department of State website for specific information on how to get an immigrant visa number.

To check the status of a visa number you can review the Department of State's visa bulletin.

Where do I apply

If you are an employer wishing to sponsor (or petition) a foreign national to work in the United States, a Form I-140, Petition for Alien Worker must be filed at the USCIS Service Center. Detailed filing information is provided in the instructions for Form I-140.

PERM: Program Electronic Review Management Labor Certification

Labor certification, formerly the most common process through which foreign workers could obtain permanent residence in the United States (i.e., the green card), has now been replaced by a new program known as "PERM" (Program Electronic Review Management). Through this new program, the U.S. Department of Labor's intent is to create a faster and more consistent labor certification process.

PERM regulations were published December 27, 2004, and became effective March 28, 2005. Through this program, the Department of Labor has promised enable quick and streamlined labor certification approvals. Prior to PERM's introduction, the labor certification process had grown in some jurisdictions to a wait of five years or longer, and procedures varied widely from jurisdiction to jurisdiction, making the program unpredictable and cumbersome.

The PERM program is now still in its very early stages, and how it will work in practice remains to be seen.

Application Process

PERM applications may be submitted online or by mail. No supporting documentation is required with the new application form, which is very detailed. However, the Department of Labor (DOL) reserves the right to audit an employer's file to ensure compliance with all filing and record-keeping requirements.

Filing Requirements

Prior to filing a PERM application, an employer and/or its legal representative must do the following:

  • Prevailing Wage Determination (PWD): The employer must obtain PWD from local State Workforce Agency (SWA) in advance of filing PERM. The salary offered must meet or exceed the prevailing wage determination.
  • Posting Notice: The employer must post a notice of the job opportunity offered for at least 10 consecutive business days on the premises and in any in-house media in accordance with normal procedures used in recruitment for similar positions.
  • Job Order: The employer must place a job order with the State Workforce Agency for a period of 30 days.
  • Advertisements: An advertisement must be placed in two different Sunday editions of a newspaper of general circulation in the area of intended employment. For professional positions requiring experience and an advanced degree, the employer has the option of placing the second advertisement in a professional journal.
  • Additional Recruitment for Professionals: For professional positions at least three additional recruitment steps must take place, including (1) job fairs; (2) employer's website; (3) job search website other than employer; (4) on campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) an employee referral program if it includes identifiable incentives; (8) notice of job opening at campus placement office if the job requires a degree but no experience; (9) local and ethnic newspapers as appropriate; (10) radio and television advertisements.
  • Recruitment Report: The employer must prepare a recruitment report describing the minimum steps taken for recruitment along with the results.

Record-Keeping/Retention of Documentation

Documents must be retained for five years from the date an application is filed.

Previously Filed/Pending Labor Certification Applications

As part of the program to eliminate the backlog of pending labor certification applications, the DOL has set up backlog reduction centers (BRCs). However, the DOL has also provided a procedure for refiling pending cases into the new PERM system. "Conversion" of a case to PERM means withdrawal and refiling and is only available for "identical" job opportunities. For this reason as well as the fact that this system remains untested, we urge extreme caution with "conversion" of regular labor certifications to the PERM system.

The refiling procedure requires all recruitment steps above. A variety of other factors should be considered before electing to refile, however, including estimated processing time for pending cases relative to that for new cases under PERM, expense of preparing a new application, and past and future recruitment.

Feel free to visit attorney Kamal Nawash for a consultation.