by Desmond P. FitzGerald, Boston Immigration Attorney
As the economy continues to recover and employment rates are on the rise, the topic of employment-based green cards is relevant again. Employers can secure dedicated and long term skilled employees by sponsoring their green cards, while 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 as soon as possible as employment-based green cards take time to process and it is beneficial to start as early as possible. Our newsletter this month summarizes the main requirements to be eligible for residency through employment as well as the process to obtain it. As always please remember to share this newsletter in your social networks and forward to those you think can benefit from this valuable information.
1. Who is eligible for an employment Green Card or Residency?
Individuals eligible for an employment Green Card or Residency, 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 for the position; unless the person falls within the category of company owner, 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
- That 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.
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 employment Boston immigration lawyers in preparing your work residency petition, and you are in the Massachusetts or New England Area, please contact our office at: 617-303-2600.
For answers to Frequently Asked Questions about Employment Residency in the US please click on this link: https://www.fitzgeraldlawcompany.com/faq/employment-residency.php
Desmond P. FitzGerald and
The FitzGerald & Company team