Below is a comprehensive list of factors that should be reviewed as you consider what is going to be the Green Card job for your foreign national’s case. It often involves considering multiple factors at once so that an effective strategy can be developed to make the case successful. Please read through this list carefully so that you can make an informed decision on the right job to select for the Green Card Process.
- Forward Thinking – when selecting the job to use for the Green Card process, you, as the employer, are deciding which job the foreign national employee will be in at the time the Green Card is approved. In most cases, Green Card approval typically takes several years, and the process can often continue for 10 years or more. Thus, it is important to be forward-thinking in your approach to ensure that your desire to promote the individual is considered. Keep in mind that the foreign national does not currently need to be in the role; it can be a future job.
- Job Changes – If a permanent job change occurs during the multi-year green card process, this often requires a restart of the green card process from the beginning. Almost any type of permanent change may require a restart, including changes to job description, job location, employer, job duties, and/or job requirements. Therefore, it is imperative to consider potential job promotions from the beginning to incorporate these potential changes into the Green Card job selection process. Also, if you do want to change the Green Card job while the case is in process, it is important to proactively send the information to ISS for review prior to the change occurring to evaluate any immigration consequences.
- Minimum Requirements – DOL only allows you to list the minimum job requirements for the position. If you are unsure of what your minimum requirements are, here are some items to consider:
- Consider Incumbents. For example:
- If your job description says ‘requires a Master’s degree’ but one of your employees was hired with only a Bachelor’s level degree, then your minimum education requirement is probably realistically a Bachelor’s, not a Master’s (unless you have had business changes requiring an increase in job requirements).If there are any other employees you have in the same job, please ensure that the experience requirements contained in your job description are the true minimums when compared to other employees in this job (unless you have had business changes requiring an increase in job requirements).
- If there are variances among your incumbents, it may also suggest that you have alternative sets of requirements, e.g., Master’s degree plus 2 years of experience OR Bachelor’s degree plus five (5) years of experience. If so, you may want to consider listing those alternative requirements in the job description.
- Please do not:
- Include ‘preferences.’ Preferences generally do not represent minimum requirements.
- Use your foreign national employee’s specific personal qualifications in place of business-driven job requirements. This is called ‘tailoring’ and violates DOL rules.
- Pre-hire Qualifications – Ensure the minimum requirements of the job do not exceed the experience the foreign national worker acquired prior to hire. Immigration rules only allow you to count qualifications earned by your employee pre-hire, unless you can demonstrate that the Green Card job is at least 50% different from the job in which the post-hire credentials were earned. For this 50% different strategy to work, the Green Card, whether a current or future job, must involve a majority of time spent on new duties when compared to the earlier job(s) held.
- Finding Qualified U.S. Workers – the Labor Certification process (PERM), requires you to demonstrate to the DOL that there are no qualified U.S. workers available to perform the Green Card job. Thus, lower-level positions that require fewer credentials have a greater risk of finding a qualified applicant in the area of intended employment. If a qualified U.S. worker is found, and you do not have more than one position available to hire the qualified U.S. worker, the Green Card process cannot continue. Therefore, it is imperative to understand the job market in your area when determining which position to sponsor for the Green Card.
- Prevailing Wage – while sponsoring for a higher-level/promotion job may have certain advantages, it can also mean there is a higher prevailing wage associated with such a position. Keep in mind that the prevailing wage does not need to be paid until the individual is placed in that role. So if the foreign national will not be in that role until the Green Card is approved, the wage obligation may not attach until many years in the future. If, however, the employee will be promoted into that role prior to the issuance of the Green Card, then the appropriate prevailing wage may need to be paid at the time of promotion if it involves H-1B sponsorship.
- EB Category – the EB category in the Green Card process determines how quickly an employee will receive their approved Green Card. The minimum requirements for the job determine the EB category and cannot be based on an employee’s individual qualifications. To fall into the EB-2 category, a job must require either a Master’s degree or a Bachelor’s degree plus five years of experience. Any job requirements lower than that will fall into the EB-3 category.
