Employment Based Residency Petition
Description
Description
Section 203(b) of the Immigration & Nationality Act provides for several methods through which an individual may obtain legal permanent residency in the U.S. through qualifying employment. Having qualified employment means you fall into one of the following categories:
- Aliens with extraordinary ability; Outstanding professors and researchers; or certain Multinational Executives and Managers.
- Aliens who are members of the professions holding advanced degrees who have an approved Labor Certification Application; aliens of exceptional ability; aliens who have qualified for a National Interest Waiver; or aliens who are physicians who will practice in an underserved area.
- Aliens who are professional, skilled workers or unskilled workers who have an approved Labor Certification Application.
- Aliens who are Religious workers, Border commuters, Retired employees of international organizations, employees and former employees of the U.S. government abroad, and Iraqi & Afghani Translators
- Aliens who are investing the minimum amount established by law, in a company which will benefit the United States economy and create full-time employment for not fewer than 10 United States workers
NOTE: the Labor Certification Application Process requires that:
- The alien employee will not be taking any jobs from U.S. citizens;
- The salary (prevailing wage) and conditions of the job offered are the prevailing in the industry and location and therefore will not negatively impact the wages and labor conditions for U.S. citizens; and
- The petitioning company or employer has the ability to pay the alien the prevailing wage.
There are several categories for this visa, which is processed in the following order of preference, as established by the regulations:
EB-1 - The First Preference includes:
- Aliens of Extraordinary Ability in the sciences, arts, education, business, or athletics; such as outstanding researchers, professors, artists, executives, athletes, and multinational managers and executives.
- Candidates in the first preference can petition for permanent residency without a sponsor and without going through the lengthy labor certification process.
Labor Certification Applications
Applicants for residency in most other categories must process a Labor Certification Application through a procedure called PERM. On December 28, 2004 the government implemented new regulations for processing "green cards" through employment. These regulations have gone into effect on March 28, 2005. Many of the key factors pertinent to the previous labor certification process have been changed; however the following are still in effect:
- It has to be demonstrated through a labor certification process that the alien employee will not be taking any jobs from U.S. citizens, and
That the salary and conditions of the job offered are the prevailing in the industry and location and therefore will not negatively impact the wages and labor conditions for U.S. citizens.
EB-2- The Second Preference includes:
Aliens who are qualified to file an application pursuant to a National Interest Waiver do not have to process a Labor Certification Application
If the alien can demonstrate that his/her residency is in the national interest of the U.S., a national interest waiver may be obtained, waiving the job offer and LCA requirements.
EB-3- The Third Preference includes:
- Professionals (with a minimum of a bachelor degree or its foreign equivalent)
- Schedule “A” workers:
- Ocupations for which the US Department of Labor has determined that there are no sufficient willing, qualified, able, and available American workers. If the occupation falls under this category, then the process of labor certification is considered pre-approved.
- killed workers (workers with at least two years of training or experience performing skilled labor), and
- Other workers" (all other workers that are not professional or skilled). These workers usually experience longer waiting periods in the residency quota lines.
EB-4- The Fourth Preference-Special immigrants & religious workers includes:
- Religious workers
- Border commuters
- Retired employees of international organizations
- Returning residents
- Employees and former employees of the U.S. government abroad
NOTE: This category does not require a Labor Certification Application (PERM).
EB-5- The Fifth Preference-Employment creation investors includes:
- Investors in new companies employing 10 or more workers, investing at least $500,000 in "targeted employment areas" (areas with unemployment of at least 150% of the national average).
- Investors in new companies employing 10 or more workers, investing at least $1,000,000 in any location.
There are only 10,000 visas per year for this preference category, of which at least 3,000 have to be assigned to investors in targeted employment areas.
Who is eligible?
When it comes to being able to proceed with a residency petition through employment you must have:
(1) an approved labor certification application from the US Department of Labor or be filing through a section of the law that does not require it; (2) an approved or pending I-140 petition; (3) have a visa immediately available; and (4) be eligible for adjustment of status pursuant to Section 245 of the Immigration & Nationality Act.
As noted above, the initial stage for most individuals is the labor certification application process known as PERM. While there are several other visa preferences discussed above that do not require an approved labor certification application those are the exceptions and not the rule.
If an individual meets all of the criteria in one of the following categories, he or she will be able to file for a residency petition immediately upon the approval of the labor certification, and an immigrant visa petition, provided the “priority date” for the visa is “current”.
However, if one does not fulfill all of the criteria in one of the categories set forth below, then the individual will be able to file an Immigrant Petition for Alien Worker, Form I-140, but will not be able to file a residency petition until a later date when all of the criteria are met for an adjustment of status, I-485.
Note: a “current priority date” means that a visa is available according to the Department of State’s Visa Bulletin.
Category I:
- Must be living in the U.S. on or before December 18, 2000 and be the beneficiary (primary or derivative) of an immigrant visa petition filed on or before 04-30-01 (According to the former INA—Immigration and Nationality Act §245(i) law. Therefore it is advisable to initiate this procedure as soon as possible if you fulfill all the requirements.
- Must have never left the U.S. without permission of the US Immigration Service
- Must have an offer of employment from a U.S. employer, who has agreed to sponsor the beneficiary for the residency
- Must receive a salary equal to or above the prevailing wage offered for such a position in the State in which the job will be performed
- Must have the sponsorship of a U.S. employer
Category II:
- Must be lawfully present in the U.S. on a current nonimmigrant visa
- Must not have violated conditions of nonimmigrant visa
Category III:
- Must be residing outside the U.S.
- Must not have been previously deported or removed from the U.S.
- Must not be subject to an order of removal, exclusion, or deportation
What is the Procedure for PERM Processing?
There are four major stages to PERM processing for residency petitions:
Stage One
Approval by the State Employment Department at the State Level:
Prevailing Wage Determination:
The prevailing wage is the salary or hourly rate of pay defined as the average paid to similarly employed workers within the industry in the geographical region of the proposed employment. This “prevailing wage” is generally obtained by contacting the State Employment Office (State Workforce Agency or SWA) in the area of intended employment or from another approved source of information.
Stage Two
Pre-filing Recruitment
This stage will differ based on the educational requirements for the position. A job is considered “professional” if it requires a Bachelors or an advanced degree. Otherwise, the job will be considered “non-professional.”
Pre-filing Recruitment for Non- Professional Jobs
- Internal Notice
- The petitioning employer must post a Notice of the Job Opportunity for at least 10 consecutive days in a common work area. The salary or salary range must be included in the notice, and it has to be equal to or above the prevailing wage. Also, the notice must include the name and contact information for the state’s certifying officer in order to give the opportunity for individuals to comment.
- In-House Media
- The regulations require the employer to utilize all in-house media, whether electronic or printed, to post the ad.
- Job Order
- The petitioning employer must place a “job order” with the SWA (State Employment Agency) for 30 days.
- Advertisements
- An advertisement for the position must be placed in a newspaper of general circulation in the area of intended employment for 2 consecutive Sundays. The ad must include the following information: name of employer, geographic area of employment, and the requirements for the position must be listed if they will also appear on the ETA 9089. It must also direct applicants to send resumes or report to the employer. * Important: all of the Pre-filing recruitment steps must be taken more than 30 days, but not more than 180 days before filing. Applications filed that do not meet the set forth criteria will be denied.
Pre-filing Recruitment for Professional Jobs
All of the Pre-filing criteria set forth for non-professional jobs must be met for professional jobs; however, 3 out of the 10 following recruitment efforts must also be met:
- Participation in Job Fairs
- Recruitment through employer’s website (mandatory)
- Use of Job Search Website other than the employer’s
- On-campus recruiting
- Recruitment through trade or professional organizations
- Recruitment through private employment firms
- Recruitment through employee referral program
- Campus placement office
- Local or ethnic newspaper
- Radio or television
Stage Three
Recruitment Report
The employer must prepare a recruitment report that describes the recruitment steps taken and the results. It must include the following: number of hires and number of US workers rejected, which must be categorized by the job-related reasons for the rejection. The petitioning employer must sign the recruitment report, and the Department of Labor may request to see the applicants’ resumes sorted by the reasons for the rejection.
Stage Four
Filing Application for Permanent Labor Certification, Form ETA 9089
Petitioning employer may file the application with the Department of Labor electronically of by mail.
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Electronic Filing: employers must register their company with the ETA website, http://www.plc.doleta.gov, and await to receive a username, password, and pin number in order to be able to electronically submit the application for their employee. The registration process may take up to 2 weeks for completion. In the event that the Department of Labor wishes to request additional information from the employer, it will do so prior to issuing log-in information. Employees are not allowed to register any information with the Department of Labor.
A priority date will be assigned on the date of the electronic submission. Any applications that are incomplete will be denied and will not be able to be processed.
Once the ETA 9089 is certified, the employer will need to sign the original form upon receipt in order for it to be filed with the U.S. Citizenship and Immigration Service, along with the Immigrant Petition For Alien Worker, Form I-140. The employer must keep a copy of the certified ETA for his/her records.
- Filing by Mail: applications may be mailed to the centralized processing center with jurisdiction over the company’s business location. A listing of the processing centers can be found at: http://www.workforcesecurity.doleta.gov/foreign. The date of receipt will be the priority date assigned to the application. Incomplete applications will also be denied and not accepted for processing.
Stage Five
Supporting Documentation
- Petitioning employers must retain records of recruitment in the event the Department of Labor issues an audit. Supporting documents are not submitted with applications, regardless of having filed by mail or electronically.
- ll records must be kept for five years.
How do I apply for my residency petition?
- Upon receipt of the certified Application for Permanent Labor Certification, Form ETA 9089, the employer may submit an Immigrant Petition For Alien Worker, Form I-140, and the employee may file an Adjustment of Status Application, Form I-485, concurrently. The employee must meet the eligibility requirements for concurrent filing.
- In order to file the I-140, the petitioning employer must show clear evidence of the company’s ability to pay the prevailing wage. This is usually done through the company’s Federal Tax Returns.
- The petitioning employer must also issue a Job Offer Letter to the employee, and the employee must have evidence that he/she has the experience required for the position.
- The I-485 will not be adjudicated in the event that issues arise pertinent to the I-140, resulting in a denial.
Visa Duration
Once permanent residency is approved it will remain valid as long as the person continues to reside in the U.S., and is not outside of the U.S. for a period greater than 6 months without permission. One must comply with the legal conditions for permanent residency.
Renewability
Your residency status never expires as long as you continue to meet the residency eligibility conditions as stated in your residency application. However, the green card (or evidence of permanent residency) expires every 10 years and it is recommended that it be renewed six months before expiration.
Family Benefits
The immediate family of the applicant is eligible to obtain permanent residency with all its benefits, at the same time the applicant receives it, if they are included in the petition at the time of making the adjustment of status. Permanent residency allows all family members to live, study and or work legally in the U.S.
What Documents do I Need?
- Birth certificate of all beneficiaries
- Copies of passport for all beneficiaries
- Copies of I-94 form (if alien is already in the U.S. and for family members already in U.S.)
- Marriage certificate (if applicable)
- Divorce certificate (if applicable)
- Copy of alien's last three years of tax returns (if applicable)
- Alien's resume
- Copies of alien's educational certificates and diplomas (if applicable)
- Letters of recommendation from:
- Present employer
- Previous employer(s)
- Previous instructors/professors (if possible)
- A complete job description including, duties and responsibilities as well as minimum experience and education required for position
- A letter of employment from sponsor including position and salary offered
- Sponsor employer's information:
- Address, telephone, and fax numbers
- Tax ID number
- Name and title of direct supervisor
- Number of employees
- Description of recruitment efforts to date
- Description of business and start date of the business
- Any other information available on the business such as marketing brochures, sales presentations, web site, etc.
What are the U.S. Citizenship and Immigration Filing Fees?
- Form I-140, Immigrant Petition For Alien Worker: $195.00
- Form I-485, Application to Register Permanent Residence or Adjust Status: $325.00 (plus a $70.00 fingerprint fee)
- Form I-485A (if applicable), Supplement to Form I-485: $1000.00
- Form I-765, Application for Employment Authorization: $180.00
- Form I-131 (if applicable), Application for Travel Document: $170.00
(click here to confirm the U.S. Citizenship and Immigration Service fees as these change regularly).
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Where can I get more Information?
Employment-based Residency relevant links:
http://www.dol.gov
The US Immigration Service employer information:
www.uscis.gov
State Department on Employment-based visas:
Summary of Department of Labor, Employment and Training Administration, Regulations on Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System (PERM), Final Rule, 12/27/04, 20 CFR Parts 655 and 656.Prepared by AILA’s PERM Implementation Working Group.
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