If you have received a permanent job offer in the United States, you may qualify for a green card. A green card is a path to citizenship and offers numerous other benefits along the way, such as the ability to work, travel in and out of the United States, and bring family members into the country.
The process may involve the following steps:
- Your employer obtains a PERM labor certification from the Department of Labor;
- Your employer files an immigrant petition on your behalf (typically Form I-140); and
- You file a green card application in this country (Form I-485), or undergo consular processing abroad.
The PERM process
This is often the first formal step in the process, in the sense that it involves applying for something from a government agency. If an employer wishes to hire certain kinds of foreign workers on a permanent basis, that employer will have to obtain a PERM labor certification from the Department of Labor.
In a nutshell, the PERM certification process is a way for the U.S. government to ensure that, in hiring foreign workers, the employer is not depriving American workers of a job opportunity, and is not otherwise diminishing the wages or working conditions for American workers in similar positions.
To obtain a PERM labor certification, the employer must first make an effort to recruit American workers for the job in question. While the employer need not submit proof of those efforts when requesting a the PERM labor certification, the employer should maintain records of those efforts in the event of an audit by the Department of Labor.
What kind of workers require a PERM labor certification?
There are generally two categories of workers that require a PERM labor certification: those who fall within the employment-based immigration, second preference (EB-2) category, and those who fall within the employment-based immigration, third preference (EB-3) category.
EB-2 workers are (1) people who hold advanced degrees, and (2) people of exceptional ability in the sciences, arts, or business. (See below regarding the exception for the National Interest Waiver or NIW).
EB-3 workers, on the other hand, are skilled workers, professionals, and unskilled workers, all of whom are seeking to fill jobs that American workers cannot fill.
Who is exempt from the PERM labor certification requirement?
Workers who fall within the category of employment-based immigration, first preference (EB-1) do not require a PERM labor certification. These are (1) people of extraordinary ability in the sciences, arts, education, business, or athletics; (2) outstanding professors and researchers; and (3) multinational managers or executives.
Additionally, although they technically fall under the EB-2 category, people who perform work that is considered to be in the national interest (also known as a National Interest Waiver, or NIW), do not require a PERM labor certification. For more information, see here.
The petition process
Once your employer obtains the PERM labor certification — or it has been determined that one is not required — the next step is the immigrant visa petition process. Like the PERM process, this step is also performed by your employer. In short, your employer is required to file a petition for an immigrant worker visa on your behalf with USCIS. In filing the petition (generally Form I-140), the employer must show (1) that the company is in a solid financial position and capable of paying your salary; and (2) you possess the eduction, licensing, and experience needed for the job in question and for requested preference category.
The preference categories for immigrant worker petitions
Once the immigrant visa petition is approved, you must begin consulting the Department of State Visa Bulletin on a regular basis to determine whether your immigrant visa is immediately available. How long you wait depends on your specific preference category. EB-1 workers, for example, are considered priority workers and take first preference. The immigration laws allow for 140,000 immigrant worker visas to be issued each year, and EB-1 workers may receive up to 40,000 of those visas each year. EB-2 workers are considered second preference, and they may also receive up to 40,000 visas each year. EB-3 workers are considered third preference, and, as with the first two preference categories, they may receive up to 40,000 of the visas allotted each year. But note that unskilled workers, although considered EB-3 workers, may only receive 10,000 visas each year.
Special rules for people of extraordinary ability and people seeking a National Interest Waiver (NIW)
As explained more fully here, there are two kinds of workers who do not need to wait for a job offer to apply for a green card, and, consequently, do not need to wait for an employer to file an immigrant visa petition on their behalf: (1) people of extraordinary ability in the sciences, arts, education, business, or athletics (in the EB-1 category), and (2) people performing work that is deemed to be in the national interest (i.e., the National Interest Waiver, or NIW, falling under the EB-2 category). These individuals are still required to have an approved I-140 immigrant worker petition, but they are able to file it on their own behalf.
Obtaining the green card
If you are already living in the United States, once your I-140 is approved and your immigrant visa becomes available, you may then file an application for adjustment of status (Form I-485) to obtain your green card. You will have to pay a filing fee, appear at an interview with an immigration officer, and undergo a background check. If you have performed the previous steps correctly and submitted all the required documents, the only thing left to prove is that you are admissible to the United States. If the application is approved, you will be deemed admitted to the United States as a permanent resident.
If you are living abroad, the process is different. After your I-140 is approved and your immigrant visa becomes available, the consular office will schedule an interview to determine whether you are eligible for an immigrant visa. If you are deemed eligible, you will receive a visa packet (do not open it), which you must present to an immigration officer at a U.S. port of entry. You will be inspected, and if there are no admissibility issues, you will be admitted to the United States as a permanent resident and will receive a green card in the mail.
If you are either a worker or employer and would like to know more about this process, contact me today.
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