Have you received a job offer from a United States employer? Do you have exceptional abilities or is your work in the national interest of the United States? Is your employer willing to sponsor you for a green card including for a long term process known as labor certification? If you have a job skill wanted by a United States employer, you may be eligible for a green card. Eligibility for a green card through employment is contingent on you having an offer for full-time permanent United States based work from an employer that is permanently located in the United States. See I.N.A. § 212, 8 U.S.C. §1182
However, only a limited number of green cards are available, 140,000 green cards yearly leading to waits of several months or years based on one’s place in the following preference categories:
(i) Employment First Preference EB-1: Priority workers, which includes the following
(a) workers with extraordinary ability in the arts, sciences, education, business or athletics,
(b) outstanding professors and researchers, and
(c) managers and executives of multinational companies
(ii) Employment Second Preference EB-2: Workers with exceptional ability or advanced degrees.
(iii) Employment Third Preference EB-3: Professionals and skilled or unskilled workers.
(iv) Employment Fourth Preference EB-4: Religious workers, foreign medical graduates who have been in the United States for a while, foreign works who are longtime United States government employees abroad, foreign nationals declared dependent on juvenile courts in the United States, “special immigrant juveniles,” employees of certain international organization or retired officers who have lived in the United States for a certain time, men and or women who honorably served for 12 years on active United States military duty after October 15, 1978, Iraqi and Afghan translators or interpreters, Iraqis who assisted the United States, Panama Canal Zone workers, persons coming to work as broadcasters for the International Broadcasting Bureau of the Broadcasting Board of Governors and or NATO civilian employees and their families. If you believe that you are eligible for an EB-4 visa, contact us to ensure that the submission of forms, fees and documents for the visa petition.
(v) Employment Fifth Preference EB-5: Individual investors willing to invest $1.05 million in a United States business or $800,000 if that business is in an economically depressed area. Additionally, the minimum investment of $1,050,000 must create a new United States business or restructure or expand one that already exists. The investment required amount may be reduced to $800,000 if the business is located in a rural area or an urban area with an unemployment rate certified by USCIS to be at least 150% of the national average. Further the investor must be actively engaged in the company in a policy forming and or managerial role. See 8 C.F.R. § 204.6(j)(5) One’s source of acquiring the money is inconsequential as long as it is obtained lawfully. Further, the business must employ at least ten full time workers implying at least thirty five hours of service per week, produce a service or product and benefit the United State’s economy. Contact us if you deem you are eligible for an EB-5 visa as USCIS may easily reject your application in the EB-5 category partly due to the eligibility requirements being narrow and strict due to the category’s history of fraud and misuse.” to “Further, the investor must be actively engaged in the company in a policy forming and or managerial role. See 8 C.F.R. § 204.6(j)(5) One’s source of acquiring the money is inconsequential as long as it is obtained lawfully. Moreover, the business must employ at least ten full time workers implying at least thirty five hours of service per week, produce a service or product and benefit the United State’s economy. Contact us if you deem you are eligible for an EB-5 visa as USCIS may easily reject your application in the EB-5 category partly due to the eligibility requirements being narrow and strict due to the category’s history of fraud and misuse.
Employment-Based Immigration FAQs
Employment-based immigration provides various pathways for foreign nationals to work and live permanently in the United States. Here are some common questions about the process:
The process typically involves several steps:
- Labor Certification (PERM): The PERM, Program Electronic Review Management process is required for most EB-2 and EB-3 employment-based green card applications. It is a labor market test to ensure no qualified U.S. workers are available for the position. The employer must demonstrate they have made a good-faith effort to recruit U.S. workers and that hiring a foreign worker will not negatively impact the wages and working conditions of U.S. workers.
- Immigrant Petition for Alien Worker: An employer or individual files a petition with USCIS to demonstrate eligibility for a specific employment-based category.
- Adjustment of Status: Upon the petition’s approval, if the individual is in the U.S., they can apply to adjust their status to permanent resident, green card holder. If the individual is outside the U.S., they go through consular processing at a U.S. embassy or consulate.
- Non-immigrant visas are for individuals intending to temporarily stay in the U.S. such as H-1B, L-1, and O-1 visas.
- Immigrant visas are for individuals intending to live permanently in the U.S. An immigrant visa leads to a green card, which grants permanent resident status.
- The National Interest Waiver (NIW) is an option for individuals in the EB-2 category who can demonstrate that their work benefits the U.S. national interest to such an extent that they should be exempt from the labor certification requirement. NIW applicants can self-petition, i.e., apply on their own behalf, and this waiver is commonly used by individuals in fields like science, technology, and healthcare.
The timeline varies significantly depending on the specific visa category, the applicant’s country of origin, and whether the individual is adjusting status in the U.S. or applying through consular processing. The process can take anywhere from 6 months to several years. For instance:
- EB-1: Priority workers generally have faster processing times.
- EB-2 and EB-3: Processing times can be much longer, especially for applicants from countries with high demand, such as India and China.
The priority date is the date the labor certification is filed or, for self-petitioners, the date the petition is filed. It determines one’s place in line for a green card. Applicants must wait until their priority date becomes current based on the Visa Bulletin issued monthly by the U.S. Department of State. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
Yes, you can apply for a green card while on a temporary work visa, such as the H-1B, often referred to as “dual intent” because the individual intends to stay temporarily on the work visa while also pursuing permanent resident status.
Yes, an employer can sponsor an individual for a green card even if the individual is already in the U.S. on a temporary work visa, such as H-1B, L-1, or O-1.
Changing employers during the green card process can complicate matters. If you change employers prior to your petition’s approval, your new employer must start the process over. However, if your petition is approved and your priority date is current, you may be able to use portability provisions under AC21 to change employers provided the new position is in the same or similar occupation.
If your green card application is denied, you have several options, depending on the reason for the denial:
- You may be able to appeal the decision or file a motion to reopen or reconsider the case.
- You can also file a new petition or seek a different type of visa.
Yes, in numerous cases, you can continue working while your green card application is pending, particularly if you are in the U.S. on a valid work visa. Once your Adjustment of Status is filed and pending for more than 180 days, you may be eligible for an employment authorization document, EAD to continue working.
These are just some of the key questions people often have as it relates Employment-based immigration. The process is complicated and requires a thorough understanding of the law. It is highly recommended that you work with an Immigration Attorney to effectively navigate the application process.