Employment Based Permanent Residence

ebprOur clients, both those with temporary status and their U.S. employers, have very good reasons to seek employment-based permanent residence. Employers choose to undertake the application process to keep valuable foreign employees because it helps them stay competitive. Foreign employees may start working on temporary visas that continue over extended periods, creating long-term ties to the U.S., but with visas that remain conditional and ultimately limited in duration without permanent residence. Imagine a U.S. university selecting a foreign born scholar as the best qualified candidate for a tenured or tenure-track position after a competitive nationwide search and then not being able to retain the professor for more than a few years, or a multinational company hiring a highly skilled executive, engineer, or business analyst who advances in the organization and then needs to leave abruptly because of immigration restrictions. The overall economy, U.S. employers, and their foreign born employees each benefit from employment-based immigration. Employers sponsor foreign nationals for permanent residence because it makes sense for the success of their business.

Immigrants are able to pursue legal permanent residence (also known as “green cards”) generally through their jobs, family, investment, or on humanitarian grounds. We help clients gain permanent residence through their U.S. employers by following a carefully tailored strategy based on their positions, qualifications, and specialized expertise. With certain exceptions, the green card process involves three separate application steps, starting with a labor certification application through the Department of Labor, continuing with an immigrant petition through U.S. Citizenship and Immigration Services based on the approved labor certification, and finishing with an application for adjustment of status or an immigrant visa through consular processing. Each step requires close coordination with U.S. employers and their sponsored employees, and a clear commitment from both to the long-term strategy that focuses on maintaining temporary status while keeping the future job offer in place until the application process is successfully completed.

The three-step process for permanent residence based on employment includes: (1) the labor certification; (2) the immigrant petition (I-140) filed with USCIS after the labor certification is approved; and (3) the I-485 application for adjustment of status once the immigrant petition is approved and there is an available visa number.

Labor Certifications: The first step required in most cases for employment-based permanent residence is the labor certification application, which is intended to protect U.S. workers. Employers complete certain mandatory recruitment steps before applying to the Department of Labor for a determination that there were no qualified available U.S. workers willing to fill the position and that hiring the foreign national will not adversely affect job opportunities, wages, or working conditions of U.S. workers. In most cases, the employer is not able to show that the foreign national is the best qualified candidate. The standard for labor certifications in cases other than for college or university special handling applications is that there must be no U.S. workers who meet the minimum requirements for the offered position. A labor certification application is required for certain advanced degree professionals, professionals with bachelor’s degrees, and skilled or unskilled workers. Certain priority workers, including those with extraordinary ability in their field, outstanding researchers or professors, and multinational executives are exempt from the labor certification requirement.

Employment-Based Categories:  With an approved labor certification, the employer files the I-140 immigrant petition with information about the employer, the sponsored employee, and the offered position to request that the employee be classified in a specific preference category. U.S. immigration law provides for five employment-based preference categories, with statutory quotas limiting the number of visa applicants based on the category and the person’s country of birth, including:

  • EB-1 – applicants with extraordinary ability; outstanding professors and researchers; and multinational managers and executives (exempt from labor certification).
  • EB-2 – advanced degree professionals (labor certification required), or those with national interest waivers, and exceptional ability (exempt from labor certification).
  • EB-3 – professional or skilled workers (labor certification), and nurses and physical therapists (exempt from labor certification).
  • EB-4 – religious workers or special immigrants (exempt from labor certification).
  • EB-5 – investors (exempt from labor certification).

Adjustment of Status: With a current visa number based on the priority date established upon filing the labor certification or the I-140 petition, and evidence of the applicant’s continuous legal status in the U.S., the final application step is through an adjustment of status to permanent residence. Applicants for adjustment of status and their immediate family members filing concurrently are eligible for the interim benefits of employment authorization and advance parole travel authorization. An alternative to adjustment of status is to file for an immigrant visa through a U.S. consulate abroad.