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Employment-based

Employment-based Visas

There are several categories called “preferences” under which Employment Based (EB) petitions can be filed. These categories are based primarily on the specific description and requirements of the job. Three of these groups are discussed here and are subject to numeric limitations set by the US Congress.

1st Preference (EB-1)
The first employment-based preference is for “priority workers”. These include:
  1. Managers and executives subject to international transfer to the United States.
  2. Outstanding professors and researchers with universities or private employers that have established research departments. See the PDF file at the LEFT.
  3. Aliens of “extraordinary ability” in the sciences, arts, education, business and athletics. See the PDF file at the LEFT.
2nd Preference (EB-2)
The second employment-based preference includes:
  1. Aliens of “exceptional ability” in the sciences, arts, or business.
  2. Individuals who possess advanced degrees (any academic or professional degree beyond that of a bachelor’s degree) or a bachelor’s degree followed by five or more years of progressive and relevant experience.
3rd Preference (EB-3)
The third employment-based preference includes:
  1. Professionals with bachelor’s degrees not qualifying in the second preference.
  2. Skilled workers having at least two year of training, experience, or education (filling positions requiring at least two years of training, experience or education).
  3. Unskilled workers.

In all cases the US employer must offer the candidate full-time, permanent employment (that is without a predetermined termination date.  Permanent employment is still “at will” employment and there is no contractual guarantee of continuous employment.) In most cases the US Department of Labor requires that there are no US workers qualified to fill the position being offered to the alien.

To qualify for one of the above preferences, the candidate must meet the qualifications for the job and the employer must demonstrate that they have the means to pay the salary indicated for the position. Both the employer and the candidate must demonstrate that there is a mutual intention for the candidate to take the position that is being offered. There are strict penalties for employers who continue to hire alien workers whose temporary visas have expired and who have not received their Green Card.

The Process
An immigrant is a foreign national who has been authorized to live and work permanently in the United States. If you desire an immigrant visa (Green Card) based on the fact that you have a permanent employment opportunity in the United States, or if you are an employer that wants to sponsor someone for lawful permanent residency based on permanent employment in the United States, you must go through a multi-step process.

  1. Foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of CIS’ paths to lawful permanent residency.
  2. Qualified alien physicians who will practice medicine in an area of the United States which has been certified as underserved by the U.S. Department of Health and Human Services; Registered Nurses and Physical Therapists; and EB-1 priority workers as well as those holding L-1A non-immigrant visas are relieved from this requirement.
  3. CIS must approve an immigrant visa petition, Form I-140, Petition for Alien Worker, for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition.  However, if a Department of Labor certification is needed the petition can only be filed after the certification is granted. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the United States.
  4. The State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant.
  5. If the applicant is already in the United States, he or she must apply to adjust to permanent resident status (I-485) after a visa number becomes available. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office.

Labor Certification for Permanent Resident Petitions under PERM
Effective 28 March 2005 the Department of Labor (DOL) issued regulations defining an electronic way to obtain Labor Certification.  Called PERM (Program Electronic Review Management), this system is designed to provide Labor Certification in as few as 45-120 days compared with two or more years under previous systems.  PERM replaces RIR and Traditional petitions.  All Labor petitions filed after 28 March 2005 must be filed using PERM.  Please note, this means that H-1B holders must plan ahead to ensure they file their Labor Certification Petitions before the end of their 5th year on H-1B so that they are eligible for 7th year extensions.

PERM begins by obtaining a Prevailing Wage Determination (PWD) through the State SWA offices based on the location, a detailed description of the specific job duties and the educational and experience requirements of the job.  Employers must be prepared and able to pay 100% of prevailing wage to the Green Card applicant when the Green Card is eventually issued.

The employer then demonstrates that they have endeavored to find a suitable US worker or current Green Card holder and have been unable to do so.  Three specific recruitment efforts are required for all job classifications to demonstrate the employer’s “good faith” efforts to find a US worker.  These include:

  • Internal posting: Notice of Filing of the job must be posted for 10 consecutive business days on an internal bulletin board and in any and all in-house media.  Additionally if the job is unionized, notice of the filing of the LCP must be sent to the Union. This posting must be at least 30 but not more than 180 days before Labor Certification filing and must contain salary information and describe the specific job opportunity.
  • Place a job order with the SWA office for 30 days.  This placement must be conducted at least 30 but not more than 180 days before Labor Certification filing.
  • Run two Sunday ads in the predominant newspaper in the area where the job is located.  If the job is in a rural area with no Sunday edition newspaper then the employer can advertise on another date but it must be the edition with the widest circulation. This placement must be conducted at least 30 but not more than 180 days before Labor Certification filing.   The employer can place an ad in a professional journal in lieu of a Sunday ad for professional positions that would normally use that media.

If the position is professional (“professional” means any job requiring at least a bachelor’s degree for entry) then any three (3) of the following other forms of advertisement are required:

  • job fairs
  • posting on the employer’s web site
  • posting on a job search web site other than the employer’s
  • on campus recruiting
  • trade or professional organizations
  • private employment firms
  • employee referral programs (with identifiable incentives)
  • campus placement offices
  • local and ethnic newspapers
  • radio and television ads

After the recruitment the employer prepares a written recruitment report indicating the results of the campaign.  This report does not need to list every applicant but still must be able to prove no qualified US workers exist and the employer will need to provide resumes if requested.  All recruitment material must be retained for 5 years.
Once the required recruiting has been completed and no suitable candidate has been found, it is permissible to file the ETA-9089.  The Labor Certification petition can be filed either electronically or by mail, however, e-filings will be processed more quickly.  No supporting documentation is submitted with the e-filed petition but the employer must retain all supporting documentation in case of an audit.  If the application is incomplete in any way it will be denied.
The DOL indicates that they will respond within 45-120 days after filing with one of three options:

  1. approval (if submitted by e-file, the employer, alien and attorney must immediately sign the certification in order to be valid)
  2. denial
  3. audit notice

Audits will be performed both on “problem” applications and on a random basis for quality control. In the event of an audit, employers will be given 30 days within which to provide documentation, i.e. ad and recruitment evidence and/or documentation of alien’s credentials, and other pertinent information. If the employer cannot provide all required supporting documentation, the case will be denied and the employer could be denied future access to PERM and thus subject to supervised recruitment for all future Labor Certification.

CIS and Department of State Approval
CIS must approve an immigrant visa petition, Form I-140, Petition for Alien Worker, for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition.  However, if a Department of Labor certification is needed the application can only be filed after the certification is granted. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the United States.  It normally takes between 9 and 12 months for the CIS to adjudicate the I-140 petition.

Upon approval of the I-140, the Department of State will assign an immigrant visa number to the applicant based upon visa availability and the numerical limitations, as outlined below.  The State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States.

Each year the government allots approximately 140,000 visas to employment-based preferences and approximately 226,000 visas to family-based preferences.  Within each preference category (EB-1 through EB-5) there are additional numerical limitations placed.  One single country cannot obtain more than 7% of the total visas available for the employment-based or family-based quotas.

Therefore, when the number of green card approvals for a particular country of chargeability (usually country of birth) begins to approach the numerical limit for the year, the Department of State updates the Visa Bulletin to show those applicants whose priority date is “current” and can obtain a Green Card.

For many years, due to the slowness of the CIS in adjudicating Adjustment of Status applications, all priority dates were current because the CIS did not approve enough green cards in one particular year to reach the numerical limit.  In 2004 the CIS began its plan to reduce the backlog of cases pending at the Service Centers.  The backlog reduction plan caused the Service Centers to begin to adjudicate Green Card applications more quickly and thus use up the visa numbers available in any given year.  You can check the current processing times for all Service Centers by clicking the “Processing Times” on our home page.

Adjustment of Status or Consular Processing.
On July 31st, 2002, the CIS changed its procedures by allowing the filing of the I-485, Adjustment of Status petition, either concurrently with the CIS Petition (I-140) or after the CIS has acknowledged receipt of the I-140. This new ruling serves to accelerate the time it takes to receive a Green Card.  In any case, the candidate must wait until his/her priority date is current, indicating a visa is available before filing the Adjustment of Status. We maintain an updated list of current priority dates. Please call us (1-800-437-7313) to check on current priority dates. When your priority date is current, you may file your Adjustment of Status, if you are currently residing in the US or you may begin Consular Processing if you are in your home country. There is a limitation that no individual country may utilize more than 7% of the given visas issued each year. If there are more applicants from a given country than available visas, a waiting list is created.

Process and Timeframe
As you can see, the process to obtain a Green Card is rather complex and time consuming, often taking 3 or more years. This material is intended to provide you with a much abbreviated summary of the process involved and to provide you with general guidelines concerning the time it may take you to obtain your Permanent Resident status.

The estimated timeframes presented herein are just that “estimates”. Many factors can lengthen or shorten these time periods and it is impossible to predict precisely how long any individual case may take. Even extensive prior experience is not a sure guide regarding future processing times.

Additionally, not all applications follow the identical path. Some petitions can skip certain steps and some may require more substantial documentation than others. An individual consultation is required to inform you of the precise process required by your situation.