Because of the peculiar nature of U.S. immigration law and policy, employment based sponsorship is often the quickest way to obtain permanent residency. These applications require critical strategic planning from the outset. Among the issues that must be discussed:
- Which employment category is most appropriate?
- What are the necessary and appropriate job duties?
- Does the employer-sponsor have the ability to pay the prevailing wage?
- How long will the process take?
- Is it necessary for the worker to be in the U.S.during processing?
The list goes on and on. In most, but not all cases, there must be a U.S. employer seeking the services of a foreign worker and the employer must prove that the sponsorship will not take a job away from a U.S. worker.
Individuals seeking to become permanent residents may be sponsored by 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. Employment based sponsorship can often cut many years off the waiting times. The key element for most of these applications is the “labor certification” which requires that the employer undertake a recruitment effort to try to attract US workers for the job. The recruitment includes help wanted ads in one or more publications and the ads must describe the job fairly, accurately and include and offer to pay the US worker a “prevailing wage” as determined by the US Department of Labor. If the recruitment does not result in attracting a qualified US worker, the employer will be granted the labor certification (or PERM) that can then be used to obtain permanent residency.
Not every employment case requires an employer-sponsor or a labor certification, particularly when it applies to very highly skilled workers and certain international business executives. In some cases, the worker may even “self-sponsor” without needing either an employer or a labor certification.
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 include the most accomplished members of the profession and usually require 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 or skilled workers applying for jobs that require 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.
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 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 much longer for citizens of India and China because of the “per country” numerical limitations.
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.