One of the methods of obtaining an employment-based green card is by having your employer sponsor you. The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas that are divided into five preference categories.
EB1- FIRST PRIORITY WORKERS: The following groups of individuals are the First Priority Workers:
-Persons of extraordinary ability in the sciences, arts, education, business, or athletics: These persons must provide extensive documentation showing national or international acclaim and recognition in the field of their respective expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer;
-Outstanding professors and researchers with at least three years’ experience in teaching or research, and they must be internationally recognized. No labor certification is required, but the prospective employer must provide a job offer and file a petition with the USCIS;
–Certain executives and managers who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work for the same employer in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
PERM Labor Certification
The PERM or Program Electronic Review Management System Labor Certification is the first step in the process of applying for employment-based lawful permanent residency. The purpose of PERM is to defend U.S. workers and the job market. The process was created to ensure that foreign workers are not filling the positions that could otherwise be filled by qualified U.S. workers.
The PERM applicant must submit an application to the Department of Labor in order to demonstrate how his/her exceptional skills cannot be duplicated by an available U.S. worker. EB-2 and EB-3 visa categories require the applicant to obtain a PERM Labor Certification before applying for the employment-based immigrant visa.
The PERM Labor Certification for EB-2 Visa may be waived with the National Interest Waiver (NIW) if the applicant provides evidence that the employment would further the national interest of the United States.
PERM Labor Certification Requirements:
To qualify for the PERM process, the following requirements must be met:
– The person must have an existing permanent job offer by a U.S. employer
– The offered wages are required to be equal or above the DOL prevailing wage. DOL will subject this to specific positions.
– The local job market has been considered for qualified candidates. This is required to provide evidence that U.S. workers are unable to complete the requirements of the position, meaning that no qualified native workers are available for the position. Supplementary documentation related to recruiting efforts must be made available if requested.
– The U.S. employer is obligated to construct and maintain an audit file with additional proof of recruitment attempts.
Recruitment steps for both professional and non-professional positions must be completed within six months of filing the PERM application.
Several requirements must be fulfilled for this comprehensive process. They include posting ads at the employer’s business location, on the employer’s website, job fairs, job search websites, newspapers, etc. Requirements for professional and non-professional positions are different thus all recruitment-related files must be documented and be available for Department of Labor inspection.
Once recruitment process is completed, the U.S. employer submits Labor Certification application to the DOL. (Form ETA 9089).
The DOL must then verify that the skill in the application for which PERM Labor Certification is requested is not available in the U.S. or that the employment requirements cannot be completed by a U.S. worker. The employer also has to provide evidence that the applicant’s employment will not affect U.S. workers in related fields. This process usually takes up to 120-180 days and the employer may be required to submit additional documentation.
Once the Labor Certification is approved, the petitioning employer must file an immigrant petition with the USCIS before the Labor Certification expires. When the Form I-140 is approved the applicant must apply for permanent residency by filing Form I-485 with USCIS.
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EB-2- Advanced Degree Holders/Persons with Exceptional Ability in the Arts: There are two groups of people eligible for EB-2 visas:
– Professionals holding advanced degrees, such as Ph.D., J.D., M.D., etc. or a baccalaureate degree and at least five years of experience in their respective fields; or
– Persons with exceptional ability in the arts, sciences, or business: Exceptional ability means having a degree of expertise significantly advanced than that ordinarily encountered within the field.
EB-2 applicants may apply for the National Interest Waiver, or NIW, which enables bypassing the PERM Labor Certification and job offer requirements thus allowing an applicant to self-petition for the NIW. However, to qualify for the NIW, the nature of the work must fall into the national interests category for the USCIS to waive the PERM and job offer requirements. In other cases, applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. In addition, a job offer is required and the U.S. employer must file a petition on behalf of the applicant. Contact Kalandarov Law, PLLC to discuss your options and qualification for an EB-2 Visa. Some persons who do not qualify for the above-mentioned visas may qualify for EB-3 Visas.
EB-3- Skilled Workers, Professionals and Other Workers: Three groups of persons can apply for this visa category:
– Skilled workers with at least two years of training or experience;
– Professionals with at least a university bachelor’s degree; and
– Other workers that are capable of filling positions which require less than two years training or experience.
All EB-3 applicants need an approved I-140 petition filed by the prospective employer, and a labor certification, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. All expenses associated with EB-3 visas must be paid by the prospective employer. At Kalandarov Law, PLLC, we can help you choose your best options and go through these complex legal processes. CONTACT US FOR A FREE CONSULTATION!
H-1B: Foreign professionals can be authorized to work in the United States with this type of visa. Qualifying employers can hire qualified foreign workers in the U.S. within specialty occupations on a temporary basis with H-1B visas. In order to be eligible for this visa, the U.S. employer and a potential employee have to comply with certain USCIS requirements and regulations and comply with the Department of Labor standards. A big part of this compliance is filing for a Labor Condition Application (LCA).
In order to apply for the H-1B visa, the applicant must have a qualified U.S. employer that initiates the process. The employer must receive a labor certification application (Form ETA-9035) from the Department of Labor and submit an H-1B petition (USCIS Form I-129) to the USCIS. The employer must also pay the fees and costs associated with the H-1B process.
Qualifying H1B applicants are those who have job offers in “specialty occupations.” A specialty occupation is an occupation that mostly mandates for a bachelor’s degree or an advanced level of education certification such as, engineering, academia and research, medicine, accounting, law, and architecture.
The job being offered also needs to meet certain requirements:
-It must pay at least the prevailing wage, a determined average wage paid to U.S. employees in the similar fields;
-Employment of the foreign professional should not affect similarly positioned U.S. workers in the field;
-Employer must have sufficient funds to pay the foreign professional;
H-1B Cap: Every fiscal year, the H-1B visa is limited by an annual cap of 65,000 visas. However, there are applicants who are exempt from the cap. Beneficiaries with a U.S. master’s degree or higher, and petitioners from institutes of higher education are exempt from the cap if it is filed among the first 20,000 petitions available. Some nonprofit and government research organizations are H-1B cap-exempt as well. At Kalandarov Law, PLLC, we help both employer-petitioners and employee-beneficiaries choose the best options based on individual needs and guide through this complex legal process.