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Permanent Residence through Employment
For those foreign nationals who do not have a close relative as a U.S. citizen or permanent resident, permanent resident status (a "green card") is possible through employment. The process usually must be completed through an employer sponsor who has a full-time job available and who can pay the usual salary for the job. There are normally three steps in the process to obtain a green card based on employment. The first step is called a labor certification, which is filed with the Department of Labor, in order to prove that there are no qualified U.S. workers available for the job. The second step is the visa petition, in which the INS determines that the foreign national qualifies for the job certified by the labor certification. The third step provides for the adjustment to permanent residence status.
The first step of labor certification is the most time consuming and difficult part of the process. The application is made to the Department of Labor in which the employer must prove that there are no qualified or available U.S. workers to perform the job of the foreign national. The employer proves that there are no U.S. workers available by performing a full recruitment for the position, including advertising in the local paper, posting a job notice at the worksite and possibly posting the job on the company website or employer participation in job fairs or on-campus recruiting. The labor certification process seeks to ascertain the availability of any minimally qualified U.S. workers for the job. If such an applicant is found during the recruitment process, the labor certification application will not be approved. Whether a candidate is the best qualified for the job is irrelevant. Furthermore, the employer must pay the "prevailing wage" which is the wage determined by the Department of Labor to be the average wage paid for the position in a particular geographic area. The entire labor certification process can take over a year to complete.
There are certain preferred types of workers who are exempt from the labor certification requirement. These are foreign nationals of "extraordinary ability", "outstanding professors and researchers", or workers whose continued employment in the United States is in the "national interest." Certain executive and managers of multinational corporation, as well as nurses and physical therapists are also eligible for an exemption from the labor certification process. Additionally college and university professors and aliens possessing "exceptional ability in the performing arts" are eligible for a reduced form of labor certification called "special handling."
Once the labor certification is approved or if one is exempted from the requirement, an employer can apply for the immigrant visa petition within one of several employment- based preference categories. The first preference consists of priority workers who do not require a labor certification. The second preference consists of professionals holding advanced degrees and persons with exceptional ability. Foreign nationals with either advanced degrees or bachelor's degrees plus at least five years of progressive experience will fit into the second preference category. The third preference consists of professionals, skilled workers, and other workers. A professional is defined as someone with a Bachelor's degree while a skilled worker is defined as someone with at least two years of training or experience, including associate degree holders. Each category is subject to annual visa number and per country limitations, which means that there may be waiting lists in several of the categories. If there is a waiting list in a particular category, the foreign national cannot file the immigrant visa petition until their "priority date", which is the date of the filing of the labor certification, is current.
While the primary focus of the labor certification is on the job itself, the primary focus of the immigrant visa petition is on the foreign national's qualifications for the position and for one of the employment based categories. In the immigrant visa petition, the employer must describe those qualifications for the position in addition to the employer's business and the position's place within the business. It usually takes a few months to obtain approval of the petition with the INS.
After the immigrant visa petition is approved, the foreign national may apply for the final step in the process, the adjustment of status or "green card" application. If the foreign national has a spouse and/or minor children, they may obtain greencards with the foreign national as dependents. This application focuses on personal and health information as well as the immigration history of the foreign national. An interview is conducted with the local INS office if the foreign national is already in the United States or with a U.S. consular office in the home country if the foreign national is abroad.
The entire process can take up to two years if your situation requires a labor certification or even longer if your visa category is subject to a backlog. The foreign national must remain with the sponsoring employer throughout the process although a new law allows for the individual to change jobs if the application for adjustment of status has been pending for over 180 days. The new job must be within a similar occupation as the job for which the petition was initially filed. Once the green card is obtained, the foreign national may live and work anywhere in the United States.
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