Boston Employment Immigration Attorney

U.S. Residency / Green Card Based on Employment

The Immigration & Nationality Act provides for several avenues through which an individual may be granted legal permanent resident status in the U.S. through an employment-based residency petition. Employment immigration law is extensive can be challenging and time consuming to understand, so it is helpful for employers and individuals to work with an experienced employment immigration lawyer, as you go through the different requirements and procedures involved to have an employment residency petition approved.  Our employment immigration attorneys can also help you with any of the different employment based non-immigrant visas for employees ^[1] coming to the U.S. on a temporary basis or for a specific period of time.

Generally, to qualify for an employment-based U.S. residency an individual must fall into one of the categories below:

EB-1

Foreigners with Extraordinary Ability; Outstanding Professors and Researchers; or certain Multinational Executives and Managers.

EB-2

Foreigners who are members of the professions holding advanced degrees who have an approved Labor Certification Application; Foreigners of exceptional ability; aliens who have qualified for a National Interest Waiver; or Foreigners who are physicians who will practice in an underserved area.

EB-3

Foreigners who are professional, skilled workers or unskilled workers who have an approved Labor Certification Application.

EB-4

Foreigners 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.

EB-5

Foreigners 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 American workers.

Permanent Employment Certification (PERM Processing)

Applicants for employment residency in most of the categories previously mentioned are required to process a Labor Certification Application (LCA) through their employers using a procedure called PERM processing. The purpose of this certification is to certify 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 of the job, 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 as determined by the US Department of Labor.

Working with an employment immigration attorney can help make PERM processing easier for employers.

U.S. Employment-based Green Card Categories

Employment-based Green Cards, like most Green Cards are subject to yearly quotas or limits and are processed by categories in the following order of preference, as established by the regulations:

EB-1 – The First Preference Category Includes:

• Foreigners 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 (LCA) process.

EB-2- The Second Preference Category Includes:

• Foreigners holding advanced degrees with an approved Labor Certification Application (LCA)
• Foreigners with exceptional training and abilities
• Qualified foreign physicians who will practice medicine in underserved areas of the U.S.
  More information on the National Interest Waiver for Physicians in Underserved Areas ^[2].
• Note: If the foreigner 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, so there will be no need to process a Labor Certification Application

EB-3- The Third Preference includes:

• Professionals (with a minimum of a bachelor degree or its foreign equivalent)
• Schedule “A” workers: Occupations 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.

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 who are investing at least $1,000,000 or $500,000 in “targeted employment areas” (areas with unemployment of at least 150% of the national average); and
• Creating 10 new full time jobs for American workers

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.

Our Boston Employment Residency attorneys will help you identify under which category you or your employee is eligible and assist with the preparation of the application and supporting documentation. Our goal is to make this process as stress-free and as clear and efficient as possible for you.

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 your job you must:

1. Have 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. Have an approved or pending I-140 petition (Immigrant Petition for Alien Worker);
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 the immigrant visa petition (I-140), provided that the “priority date” for the visa is “current”.

However, if a person does not fulfill all of the criteria in one of the categories below, then the employer of the individual will be able to file an Immigrant Petition for Alien Worker, Form I-140 ^[3], but the foreign worker 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 ^[4] (if the foreign employee is currently in the U.S.) or a Ds-260—application for residency via consular processing ^[5] (if the foreign employee is outside the U.S.)

Note: a “current priority date” means that a visa is available according to the Department of State’s Visa Bulletin ^[6] (the priority date is current when the visa category shows the current month and year in the Visa Bulletin).

Category I:

• Must be lawfully present in the U.S. on a current nonimmigrant visa.
• Must not have violated the conditions of their nonimmigrant visa.

Category II: 245(i) Eligible

• Must have been 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 4-30-2001 (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 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 to the U.S. pursuant to section 212 of the INA (Immigration and Nationality Act).

The Procedure for PERM Processing / Labor Certification (LCA)

There are four major stages to PERM processing for employment-based residency petitions. Make the process of going through each stage of PERM easier by working with a seasoned employment immigration attorney.  Call and schedule a consultation today or request your appointment online. ^[7]

Stage One:  Prevailing Wage Determination

The prevailing wage is the salary or hourly rate of pay defined as the average amount 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 Steps 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 in 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.

Additional Pre-filing Recruitment Steps for Professional Jobs

For professional jobs, employers need to complete all of the above-mentioned recruitment requirements for the non-professional jobs, with the addition of 3 out of the 10 additional recruitment efforts below:

• 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 inspect the records related to the recruitment, as well as the recruitment report with 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 must file the ETA-9089 application (LCA) with the Department of Labor electronically or by mail within 180 days of the initial recruitment step. For electronic filing, employers must register their company with the Employment and Training Administration (ETA) and wait to receive a username, password, and PIN number to submit their applications electronically. The registration process can take up to two weeks to be completed but this could be longer if the Department of Labor (DOL) requests additional information.

A priority date will be assigned on the date of the electronic submission of form ETA-9089. 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.

Applications can also 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.

Supporting Documentation

Supporting documents are not submitted with applications, regardless if these were filed by mail or electronically. However, petitioning employers must retain records of the recruitment efforts in the event the Department of Labor issues an audit.

All records must be kept by the employer for five years.

Applying for an Employment Green Card/Residency Through Your Job

Applying for Employment-Based Residency after LCA Approval: I-140 and I-485 or DS-260

• 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, within 180 days of the LCA approval, and the employee may file an Adjustment of Status Application, Form I-485, concurrently, if they meet the eligibility requirements for concurrent filing, and they are present in the U.S.
• In order to file the I-140, the petitioning employer must show clear evidence of the company’s ability to pay the approved 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 they have the experience required for the position.
• If the employee does not meet the eligibility requirements for concurrent filing with the I-140, and they are present in the United States, they will have to wait until their “priority date” is current before filing the I-485.
• If the employee is outside the U.S., they will have to process their residency petition, Form DS-260 at a U.S. Consulate, once their “priority date” is current.

The application process for an employment Residency / Green Card is long and complex, which is why it is recommended to use the help of an immigration lawyer experienced with this specific type of work. Our bilingual employment immigration lawyers in Boston can help you. Call to schedule an appointment at (617) 315-0014 (ext. 0)

Can I obtain my residency through employment, if my boss wants to sponsor me?

What is labor certification?

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 180 days without permission. One must comply with the legal conditions for permanent residency.

Renewability of Employment Green Card

Your permanent resident status does not expire as long as you continue to meet the eligibility requirements listed in your original residency petition. However, your physical green card, which serves as proof of your permanent residency, must be renewed every 10 years. It is best to apply for renewal about six months before the card’s expiration date.

How can I obtain a U.S. social security number?

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 requesting the adjustment of status. Permanent residency allows all family members to live, study and or work legally in the U.S.

Documentation Needed for an Employment Residency

Documents Needed from Employer or Green Card Sponsor

• 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 the business and start date of the business
• Company financial records or tax returns establishing profitability of the company and ability to pay the approved prevailing wage to the sponsored employee.
• Any other information available on the business such as marketing brochures, sales presentations, website, etc.

Documents Needed from the Beneficiary of the Employment Green Card

• Birth certificate of all beneficiaries
• Copies of passport for all beneficiaries
• Copies of I-94 form (if foreigner is already in the U.S. and for family members already in the U.S.)
• Marriage certificate (if applicable)
• Divorce certificate (if applicable)
• Copy of foreigner’s last three years of tax returns (if applicable)
• Foreigner’s resume
• Copies of foreigner’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 sponsoring employer including position and salary offered

Note: All documents must be translated to English before submission to USCIS

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 ^[10] 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 ^[11] to learn more about our fee structure.

Click here ^[7] if you would like to come in for an initial consultation.

More Information

• Medically Underserved Areas Link ^[12]
• Department of Labor (DOL) Link ^[13]
• Permanent Worker Visa Preference Categories by the USCIS ^[14]
• Green Cards for Employment-based Immigrants by the USCIS ^[15]
• Filing an Employment Authorization Document ^[16]
• Employer Information for Sponsoring Foreign Workers for the U.S. ^[17]