Finding qualified employees can be challenging when the U.S. unemployment rates have been so close to the natural unemployment rate for many years and at times even below it. Not to mention how hard it can be to find employees in the STEM (Science, Technology, Engineering, and Math) fields, where the US has had a shortage of people trained in these areas, compared to its needs. A good option for U.S. employers to secure dedicated and long term skilled employees is to tap into the talent of the brightest immigrants by sponsoring their green card. In the same way foreign employees can benefit by obtaining not only their own U.S. Legal Permanent Residency but also that of their spouses and children. We urge employers and employees to discuss this option early in the hiring process as employment-based green cards take time to be approved and adjudicated, so it is beneficial to start the process as early as possible. If you would like to schedule a consultation with one of our Boston employment immigration lawyers [1], call 617-523-6320 (ext.0) or use our online appointment request form [2].
Below is a summary of the main requirements for eligibility for residency through employment as well as the process to obtain it.
- 1. Who is eligible for an employment Green Card or Residency? [3]
- 2. Part I of the Employment-based Green Card Process: The Labor Certification Process (LCA) [4]
- 3. Part II of the Employment-based Green Card Process: The Immigrant Petition for Alien Workers, I-140 [5]
- 4. Part III of the Employment-based Green Card Process: Adjustment of Status (I-485) or Consular Processing [6]
- 5. Other Benefits of Employment-based Residency Petitions [7]
1. Who is eligible for an employment Green Card or Residency?
Individuals eligible for an employment Green Card or Residency [8], generally fall within one of the following 3 categories:
- Executives of multinational companies or individuals of Extraordinary Ability;
- Qualified employees sponsored by a US employer, or
- Individuals making a substantial investment in the US that will generate 10 full time jobs for US workers.
Generally, the applicant must have an employer who is willing and financially able to petition for them, meaning the employer is able to pay the prevailing salary (the most common salary for the specific position in the specific location where the work will be performed) for the job; unless the person falls within the category of company owner or executive or alien with extraordinary ability, who do not need to go through the Labor Certification Process (LCA). In addition, owners and aliens of extra ordinary ability can petition for residency themselves without an employer.
2. Part I of the Employment-based Green Card Process: The Labor Certification Process (LCA)
For most employment residency petitions, the Labor Certification process is generally the first step in obtaining an employment based green card. Through this process the employer must demonstrate that:
- The alien employee will not be taking any jobs from U.S. workers, and
- The salary and conditions of the job offered are the prevailing (or most common) in the industry and location where the job will be performed, and therefore will not negatively impact the wages and labor conditions for U.S. workers.
The labor certification process entails requesting from the government the prevailing wage in the industry for the job in the location to be performed, as well as following the recruiting guidelines to see if there are any qualified American workers who want the job. If no qualified American worker is willing or able to accept the job, the Department of Labor will certify or approve the LCA or Labor Condition Application.
3. Part II of the Employment-based Green Card Process: The Immigrant Petition for Alien Workers, I-140
Once the LCA is approved, the employer must submit an Immigrant Petition For Alien Worker, Form I-140 within 180 days. In order to file the I-140 application, 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. It is important to bear in mind that if the petitioning company or employer is not declaring enough taxable income or is declaring losses, this can have a negative impact on the immigration employment petition.
4. Part III of the Employment-based Green Card Process: Adjustment of Status (I-485) or Consular Processing
When the priority date of the LCA is current, the employee may file the Adjustment of Status Application, Form I-485, if they are in the US; or process the employment residency petition at a US consulate, if the employee is abroad. To file for Adjustment of Status, the employee must meet the eligibility requirements for adjustment, which include: being in lawful immigration status at the time the adjustment of status application is filed and not having violated any of the conditions of his/her non-immigrant visa; or be eligible for the 245i law [10].
In some instances individuals can apply for adjustment of status at the same time that the I-140 petition is filed. However, the I-485 will not be adjudicated if the employer’s Petition For Alien Worker I-140 is not approved.
5. Other Benefits of Employment-based Residency Petitions
Work residency petitions may also be used to bring family members who are outside the US, if an employer is willing to petition for them. This may also provide a benefit to the individual who is out of status inside the US and cannot obtain residency directly in the US, as once an immediate family member obtains his or her employment green card, the undocumented person in the US may be eligible to apply for a pardon or waiver of inadmissibility.
If you want the help of our Boston employment immigration attorneys [1] in preparing your work residency petition or that or your employee, please contact our office at: (617) 303-2600 ext.0) or complete our online consultation request [2].
Answers to Frequently Asked Questions about Employment Residency in the US [11]
Read previous newsletters [12]