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Boston Employment Immigration Lawyer

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What Is Employment Residency/Green Card in the US?

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. Employment immigration law can be challenging to understand, and it’s important to work with an experienced employment immigration attorney as you move through the stages of obtaining legal residency 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 (generally 1 million dollars), 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 (LCA) Process requires that:

  • The alien employee will not be taking any jobs from U.S. workers;
  • 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. workers; 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/Condition Applications (LCA):

Applicants for employment residency in most other categories must process a Labor Certification/Labor Condition Application through a procedure called PERM (see Perm Process description). Working with an employment immigration attorney can help make the application process easier for immigrants and their employers.

EB-2- The Second Preference includes:

  • Aliens holding advanced degrees with an approved Labor Certification Application (LCA) or with exceptional training and ability.
  • Qualified alien physicians who will practice medicine in underserved areas of the U.S.
    More information on the National Interest Waiver for Physicians in Underserved Areas.
  • 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 U.S. 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.
  • Skilled 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.

NOTE: This category requires a Labor Certification Application (PERM).

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

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 for obtaining legal permanent residency through work in the U.S?

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 U.S. 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: 245(i) eligible

  • 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). Or have been the beneficiary of a visa petition filed on or before January 14, 1998, and if you were not living in the US on or before December 18, 2000.
  • 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.
  • Must not be inadmissible pursuant to section 212 of the INA (Immigration and Nationality Act).

What is the Procedure for PERM Processing?

There are four major stages to PERM processing for residency petitions. Make the process of going through each stage of PERM easier by working with a seasoned employment immigration attorney.

Stage One:

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 may be obtained by filing a Form ETA 9141 with the National Prevailing wage center of the Department of Labor (DOL).

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 business 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 U.S. 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 (LCA), Form ETA 9089

The petitioning employer may file the application with the Department of Labor electronically or by mail. An employer may also work with an experienced employment immigration lawyer to assist in the employment residency application process.

  • Electronic Filing: employers must register their company with the ETA 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. 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.
  • All records must be kept for five years.

How do I apply for my Employment Green Card/residency through my job?

  • 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.

What is the duration of the legal permanent residency via employment?

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 employment 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 of Residency Through Employment

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 Documentation do I need for an Employment Green Card/Residency?

  • 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)
  • 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
    • Company financial records or tax returns establishing profitability of the company and ability to pay the prevailing wage to the sponsored employee.
    • 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?

The USCIS Filing fees for the following Forms:

  • Form I-140, Immigrant Petition For Alien Worker:
  • Form I-485, Application to Register Permanent Residence or Adjust Status: (plus a fingerprint fee)
  • Form I-485A (if applicable), Supplement to Form I-485
  • Form I-765, Application for Employment Authorization (renewal only)
  • Form I-131, Application for Travel Document (renewal only)

(Click here to confirm the U.S. Citizenship and Immigration Service fees as these change regularly).

What are the Legal Fees to Petition for an employment green card?

Click here to learn more about our fee structure.
Click here if you would like to come in for a free initial consultation.

Where can I get more Information?

Medically Underserved Areas Link

Department of Labor (DOL) Link

Permanent Worker Visa Preferece Categories by the USCIS

Filing for Permanent Residence based on Employment

Employment Based Residency Petitions by the USCIS

Filing an Employment Authorization Document

Employer Information

Information for Employers and Employees

Application for Permanent Employment Certification

E-verify quick reference guide for employers

E-verify user manual for employers

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