EMPLOYMENT BASED IMMIGRATION

Individuals seeking to become permanent residents must usually be sponsored by a family member or a current or future employer. Although family sponsorship may seem like the easier path to a green card, that path often stretches out for many years. By comparison, employment based sponsorship can often cut many years off the waiting times (except for citizens of China or India). The key element for most of these applications is a “labor certification” which is an approval by the US Department of Labor (DOL) that the employer has first sought to recruit a US worker for the job through an approved recruitment process. This process, often referred to as a PERM, is extremely regimented and even minor typographical errors in the application can result in a denial and the loss of considerable time and money.

Not all employment based applications require labor certifications and certain types of applicants can “self-sponsor” without the need of an employer. The employment based categories include

  • Employment Based First Preference. Includes international business managers and executives and individuals of extraordinary ability. International business people must have served in that capacity for at least one year before coming to the US and must be transferred from a foreign company to a related company in the US. Applicants of extraordinary ability includes the most accomplished members of the profession and usually requires considerable national or international recognition. Applicants in this category do not require a labor certification and there has never been a waiting period in this category because so few people qualify.
  • Employment Based Second Preference. This category most commonly includes applicants with an advance degree, which includes either a Masters or PhD. If you are in this category you will generally need a labor certification or qualify for a National Interest Waiver(NIW). This is an application that requires you to prove to USCIS that your education, accomplishments and skills are of such importance to the US that you should not need to compete with US workers for the green card. Most NIWs are granted to Research Scientists with a history of important research and publications relating to that research in leading scientific journals. If you are granted a NIW you can not only dispense with the need for a labor certification but you can also dispense with the need for an employer/sponsor and self-petition. If you are in this preference, you are, however, subject to the normal waiting periods in that category.
  • Employment Based Third Preference. Applicants in this category include professionals with at least a Bachelor’s Degree and skilled workers applying for jobs that required a minimum of 2 years’ experience. This preference always requires a labor certification. It includes IT professionals, accountants, engineers as well as lathe operators, specialty cooks, and most supervisory positions.
  • Employment Based Fourth Preference. This category includes “other workers” who are seeking jobs that do not require 2 years’ experience. It includes cashiers, laborers, kitchen help and other, lesser skilled jobs. This category does require a labor certification.
  • Employment Based Fifth Preference. This category is for immigrant investors. It requires an investment of $1 million (or $500,000 in certain Target Employment Areas). We deal with this category separately.

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A few other things to note: approval of a labor certification and approval in one of the preference categories does not guarantee a green card nor does it grant you any type of legal status or employment authorization. Individuals who are out of status or have other immigration violations or criminal convictions can still be denied permanent residence. Furthermore, current waiting periods are virtually the same and are very close for the Second, Third and Fourth Employment Based Preference. (Except for citizens from India or China) A physicist with a PhD. in nuclear physics can also qualify as a short order cook and often the pathway through the kitchen is shorter and easier than the pathway through the classroom.

And a final note: the employer and not the worker is required to pay the legal fees associated with the labor certification process, including the costs of advertising and other disbursements.