1. Employment-Based Categories
The majority of cases handled by our firm are employment-based permanent residence petitions. We would like to provide you with a brief explanation of the current regulations and procedures involved in obtaining a green card. In 1990, Congress created a Priority System for granting permanent residence to foreigners based on their employment skills. The law allocates 140,000 visas annually for those principal aliens who qualify under the following FIVE employment-based ("EB") preference categories:
FIRST "EB-1" PRIORITY WORKERS (40,000 visas per year)
- workers with extraordinary ability in the sciences, arts, education, business, and athletics
- outstanding professors and researchers
- multinational managers and executives subject to transfer to the US
SECOND "EB-2" (40,000 visas per year)
- workers with exceptional ability in the sciences, arts, or business
- advanced degree professionals
THIRD "EB-3" (40,000 visas per year)
- professionals with bachelor's degrees
- skilled workers (minimum 2 years of experience required)
- unskilled workers (less than two years experience required for the position)
FOURTH "EB-4" SPECIAL IMMIGRANTS, including but not limited to (10,000 visas per year)
- religious workers -a maximum of 5,000 visas is set aside for religious workers
FIFTH "EB-5" IMMIGRANT INVESTORS (10,000 visas per year)
- foreign investors whose enterprises will directly create 10 or more new jobs in the US ; 3,000 visas are reserved for investors in targeted areas.
In most cases, the process of obtaining permanent residence based on employment is comprised of three steps: the Department of Labor certification application, the US Citizenship and Immigration Service (USCIS) visa petition and the application for permanent residence. Note that some eligible individuals may bypass filing the labor certification with the Department of Labor, and directly file the I-140 immigrant petition with USCIS.
I-140 Immigrant Visa Petitions for the following individuals do not require the labor certification application:
- Individuals of Extraordinary Ability
- Outstanding Researchers/Professors
- Multinational Managers/Executives
- National Interest Waivers
I. Labor Certification: as mentioned above, in most cases, the first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a Labor Certification from the US Department of Labor (USDOL). Labor Certification is a statement from the USDOL that a particular position at a particular company is "open" because no US workers who satisfy the minimum requirements are available, and that the company is paying and will pay the sponsored foreign employee the "prevailing wage". This process involves first identifying and evaluating the sufficiency of the company's recent recruitment efforts including published advertisements, Internet ads, college recruitment, job fair participation, and employee referral bonuses, just to name a few. To know more about this process click on PERM.
II.The USCIS Immigrant Visa Petition: once the labor certification is approved, the employer or self-petitioning worker submits the Form I-140 to the USCIS. Upon approval, provided that the immigrant visa is available, the beneficiary can apply permanent residence.
III. Application for Permanent Residence: the alien worker can obtain permanent residence in a US Consulate abroad or can apply for "adjustment of status" (AOS), if present in the US . The employee, along with his/her dependents, can file his or her I-485 application with the I-140 or after the I-140 is filed, as long as his or her "priority date" is current, which means that an immigrant visa is immediately available. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly Visa Bulletin that indicates which countries and categories fall under these limitations.
If a foreign worker wishes to Consular Process his/her immigrant petition, we strongly advise to check appointment waiting times and requirements before making travel plans outside of the US .
3. Recent Developments
- Change of Employers. Before, applicants sponsored under an EB category had to wait two to three years to have their adjustment status petition approved. In the meantime, they were obliged to work for the sponsoring employer. The ACWIA allows the applicant to change employers as long as he/she is the beneficiary of an EB petition and the application for adjustment of status has not been adjudicated for over 180 days. Note that the worker's new job must be "in the same or similar occupational classification as the job for which the petition is filed".
- Concurrent Filing of I-130/ I-485 applications. Before July 31 st, 2002, the Immigration and Naturalization Service (INS) regulations provided that an alien worker who wanted to apply for permanent resident via adjustment of status, could do so until he or she obtained approval of the underlying petition, Form I-140, Immigrant Petition for Alien Worker. This procedure resulted in unnecessary delays for certain alien workers. The concurrent filing program amended the INS regulations by allowing the Form I-485 to be filed concurrently when a visa is immediately available, thereby improving the efficiency of the process as well as customer service. This INS interim rule allows the alien worker to apply for employment authorization using Form I-765, Application for Employment Authorization, and for advance parole authorization using Form I-131, Application for Travel Document, while the Form I-485 is pending. Concurrent filing means any I-140 / I-485 filed at the same time or a subsequent I-485 filing pursuant to a pending I-140 if no adjudicative action has been taken on the I-140.
- Visa Availability Backlogs. Recently, the Visa Bulletin published by the State Department announced that immigrant visa numbers (green cards) in the Employment-Based Third Preference Category are Unavailable. The visa retrogression means that whenever there are more qualified applicants for a category than there are available immigrant visa numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant's priority date. Immigrant visas cannot be issued until an applicant's priority date is reached. In other words, the foreign worker may now be waiting for a period of three or four years before adjusting status to permanent resident or obtaining a appointment for immigrant visa at the US Consulate abroad until his/her priority date is reached.
- Immigrant Visas for Nannies. The PERM legislation introduced the Occupational Information Network (O*NET) which contains a more comprehensive list of occupations. Under the PERM rule, the O*NET has become a fundamental job classification system for the adjudication of an alien labor certification application. The O*NET occupational system includes “ nannies” in its job title list. This is great news for those of us who are trying to alleviate our current crisis of “child-home care” and wish to legally find a foreign nanny wishing to immigrate to the U.S. Attorney Gabriela Ungo was recently successful in a labor certification approval for her nanny and being a mother of three, she is overwhelmed with joy.