U.S. employers wishing to sponsor a foreign citizen for permanent residence must face the daunting task of navigating the murky legal waters of U.S. immigration laws. A majority of applicants fall under the EB-2 or the EB-3 category. The process of sponsoring foreign workers to obtain permanent residence through an application for an EB-2 or an EB-3 is a three-step process:
1.) A Labor Certification
2.) an immigrant visa petition
3.) making an application to change status to one of a permanent resident.
EMPLOYMENT-BASED IMMIGRATION
The U.S. employer may sponsor an individual from a country at sea or living in within the U.S. under their employ to obtain permanent residency (colloquially called”green card. “green card.”) Through an employment-based immigrant petition.
There are five categories or choices within the Employment-Based (EB) system, e.g., EB-1, 2, 3, 4, and 5. Most applicants are likely to fall under the EB-2 or EB-3 categories. The EB-1 petitions are for individuals from abroad with exceptional abilities, multinational executives and managers, and outstanding academics or researchers. EB4 and 5, 4, and 5 are for certain types of investors and immigrants, respectively.
In general, EB-2 and EB-3 Petitions require a labor certificate issued by the Department of Labor and a job offer. People who want to obtain permanent residency due to a petition for EB-2 or an EB-3 must go through a three-step procedure.
STEP 1: THE LABOR CERTIFICATION
The Labor Certification is a decision issued by the Department of Labor that there aren’t any U.S. workers who are suitable and ready for a job that requires an international worker. To be eligible for a Labor Certification, the employer has to show a good recruitment process for a specified period and show that there are no suitable or available U.S. employees for the job. The Department of Labor then issues a decision on the request. The labor certification application is the PERM (Program Electronic Review Management).
A Labor Certification is NOT an Application for Permanent Residency
We have seen clients arrive at our office and have wrongly (sometimes mistakenly) believed that their work certification is a form of application for permanent residence. The mere filing of a labor certification does not confer a foreign worker with the Status of an immigration officer, nor do they grant an authorization to be employed by the employer who sponsored them. A foreign worker must have a valid and independent basis to work like an immigration visa that is nonimmigrant in the categories of E, O L, H, and H.
STEP 2: THE VISA PETITION
If a labor certification is approved, the employer must submit to the United States Citizenship and Immigration Services the petition for the worker to be an alien Form I-140 with the official labor certification along with the supporting documents required.
The visa application intends to establish the connection between the employer who sponsors the worker from abroad. Most often, employers will be required to submit documents proving their financial capacity for paying the worker the minimum wages set by the labor certification. The worker from abroad must prove that they have the minimum number of years of knowledge and experience as stipulated in the labor certification. Following the minimum requirements listed in the labor certification, Employers will apply for either EB-2 or the EB-3 classification.
Who Qualifies for EB-2?
An alien worker is eligible for an EB-2 petition If he or she 1.) has a valid Labor certification, barring waiver by a National Interest Waiver; AND 2.) has an advanced degree. The job offers require the applicant to have an academic degree. To be eligible for an advanced degree, the foreign worker must hold at least a bachelor’s degree and at least five years of post-baccalaureate experience.) has exceptional capabilities, and be offered a job that requires an individual with exceptional abilities.
In the EB-2 classification, the Labor Certification requirement may be exempted if the conditions are met by submitting documents showing a national need to waive what is known as”the National Interest Waiver.
Who Qualifies for EB-3?
Foreign workers can be eligible for EB-3 If the worker: 1.) has a labor certification that is approved and 2.) is a professional whose work has a U.S. baccalaureate degree or equivalent foreign qualification and proves that a baccalaureate diploma is necessary for entry into the field of work; OR.) is an experienced worker with an essential requirement, which is two years of education or experience.
STEP 3 ADJUSTMENT OF STATUS
A foreign worker can apply for adjustment statistics to obtain permanent residence if he or he is currently located in the United States, has not been in nonimmigrant status for more than 180 days, and have visa numbers accessible to them within their Employment-Based Preference category, i.e., EB-2 vs. EB-3. Visa numbers refer to the numerical limit set in the State Department of persons allowed to move to the United States within each preference category. Suppose too many applications are submitted for a specific EB category, and visa numbers are not issued. In that case, this category might run out, resulting in a backlog, i.e., a waiting list develops.
Concurrent Filing of Visa Petition and Application for Adjustment of Status
A Visa petition (Form I-140) and application for adjustment to Status (Form I-485) can be filed simultaneously depending on whether visa numbers within one specific Employment-Based preference are currently available. If not, you can only file you need to file the Visa application (Form I-140) can be filed; however, not the application in Adjustment status(Form I-485).).
CONCLUSION
There are many aspects to take into consideration when hiring an international national. An oversight or a mishap during the procedure can be the difference between the success or failure of a request or application. Knowledge of the immigration and labor certification process can help the HR manager or employer be better informed to make informed decisions to meet the issues of global recruitment.
John Mei is an immigration lawyer and partner in the firm that represents Danziger and Mei, LLP, located in Woodland Hills, California. John. Mei provides clients with solutions for legal and corporate immigration. His areas of practice include nonimmigrant visas and labor certifications. Schedule A workers requests for the EB 1 up to 3. National Interest Waivers, investor visas like E-1 and E-2, and EB-5 investors’ petitions.
He. Mei’s firm represents U.S. companies, multinational corporations, start-ups, and start-ups, as well as publically traded hospitals and universities, both private and public and foreign investors. He is dedicated to providing services based on ethical conduct and delivering clients the best results by providing innovative legal solutions.