3 Categories for Employment-Based Residence or “Green Card”

How and Who Can Obtain Residency or a “Green Card” Through Employment?  

People eligible for residency or a “Green Card” based on employment are generally under one of the following 3 categories:

• Executives of Multinational Companies or a person with extraordinary abilities;

• A qualified employee sponsored by an American employer, or

• A person investing a substantial amount in the U.S. and generating 10 full‑time positions for American workers.

In addition, you must have an employer who is willing and financially able to sponsor you, meaning that the employer can meet the prevailing wage for the position; unless you fall under the category of Foreigners with extraordinary abilities, who may self‑petition without having to go through the labor certification process.

The Labor Certification Process (LCA) 

For most employment‑based residency petitions, the labor certification process, known as LCA, is generally the first step to obtaining residency through employment. Through this process, the employer must demonstrate:

• That the foreign employee will not be taking jobs away from American workers, and

• That the salary and working conditions offered are the prevailing (or most common) in the industry and location where the job is and therefore will not negatively impact the wages or working conditions of American workers.

The labor certification process involves requesting from the government the prevailing wage in the industry and location where the work will be performed, as well as following the established recruitment guidelines to determine whether there is any qualified American candidate who wants the job. If there are no American workers who are qualified and willing to take this position, the Department of Labor will certify the Labor Condition Application or LCA.

When the LCA is approved, your employer may file an immigration petition for foreign workers, Form I‑140, within the next 180 days. To file the I‑140 petition, the petitioning employer must show clear evidence of the company’s ability to meet the prevailing wage. This is generally done by submitting the company’s tax returns from the previous year.

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 United States, or process the employment‑based residency petition at a U.S. consulate if they are abroad.

Eligibility Requirements 

To file for adjustment of status, the employee must meet the eligibility requirements, which include having legal immigrant status at the time of filing the application and not having violated any of the conditions of their immigrant visa or otherwise being eligible under law 245i.

In some cases, individuals may apply for adjustment of status at the same time the I‑140 petition is filed. However, the I‑485, or adjustment of status, will not be adjudicated if the petition for a foreign worker, I‑140, is not approved.

If you are in Massachusetts or the New England area and would like the help of our Boston attorneys who are experts in employment‑based immigration to prepare your employment‑based residency petition, call our office to schedule an appointment at: (617) 303‑2600.