Lawful permanent residence in the United States (often called the “green card”) is usually obtained through the filing of a petition by a family member or through sponsorship by an employer. There are also specialized programs for certain individuals who fall outside these groups to obtain their permanent residence, including asylees, special immigrants, individuals whose immigration is deemed to be in the national interest.
For more information on family-based immigration, we invite you to visit our “Family-Based Visas” Link.
Permanent Residence Through Employment
There are five categories, or “preferences” of employment-based (EB) immigrant visas:
EB-1:Multinational Executives/Managers of Multinational Corporations; Persons of Extraordinary Ability in the Sciences, arts, education, business, or athletics; Outstanding Researchers.
Multi-national Executives/Managers must demonstrate that they have held an executive or managerial position duringthe 3 years preceding the petition for at least 1 year by a firm or corporation and they must be seeking to enter the United States to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
Individuals seeking EB-1 classification for Extraordinary Ability must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be recognized in your field through extensive documentation. No offer of employment is required.
Outstanding researchers must demonstrate international recognition for outstanding achievements in a particular academic field. They also must have at least 3 years experience in teaching or research in that academic area and must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
No labor certification is required for EB-1immigrant visa petitions.
EB-2: Members of the Professions holding advanced degrees or persons with exceptional ability in the arts, sciences, or business:
To qualify under the “advanced degree” category, an individual must possess, and must be employed in a position that requires, a U.S. masters degree or equivalent, or a bachelor degree and five years of work experience.
To qualify as an alien with “exceptional ability”, one must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
A labor certification is required unless the applicant obtains a national interest waiver (NIW). In order to file an NIW petition, a candidate with an "advanced degree" or "exceptional ability" must be able to persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate's proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. An individual who is granted a National Interest Waiver does not need an employment offer and can essentially petition him/herself.
EB-3: Professionals, Skilled Workers, and Other Workers: Professional workers are those individuals working in professional positions that require a Bachelors degree or the equivalent for entry into the position (e.g. architect, engineer). Skilled Workers are those workers who are working in jobs that require two years of experience. Other Workers are workers in jobs that require less than two years of experience.A labor certification is required for EB-3 immigrant visa petitions.
EB-4: “Special Immigrants”: certain religious workers, employees of foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens. No labor certification is necessary for visas in this category.
EB-5: Immigrant Investors: Business Investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.No labor certification is required. For more information on Investor Visas, we invite you to visit our “Investor Visa” link.
Steps to Permanent Residence Through Employment
The permanent residence process for most employment-based cases generally consists of three general stages: (a) a labor certification filed at the Department of Labor ; (b) an immigrant visa petition on behalf of the foreign national worker; and (c) adjustment of status if the alien is inside the United States or consular processing if the individual is outside the United States.
The Permanent Labor Certification allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved Labor Certification from the DOL's Employment and Training Administration (ETA). The DOL must certify that there are no qualified U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area of intended employment. The PERM Labor Certification application is filed with the DOL online.
Prior to filing the labor certification, the employer must undertake recruitment efforts (advertising, etc.) as set out by the DOL in order to prove that there are no qualified U.S. workers that will be displaced by the employment of the foreign national. Only after the recruitment process is completed and the Labor Certification can be filed. The requirements for the labor certification include that:
1) The employer must hire the foreign worker as a full-time employee;
2) There must be a bona fide job opening;
3) Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications nor are the job requirements unduly restrictive unless required by business necessity;
4) The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Immigrant Visa Petition
After approval of the labor certification, the employer must file an “Immigrant Petition for an Alien Worker” with USCIS. USCIS assigns the petition a priority date, which is the date that the labor certification was filed with the DOLWhen there is a current visa number available, the foreign worker can file the I-485, Application to adjust status to Permanent Resident. To learn which priority dates for visa numbers are currently being processed, one must check the State Department Visa Bulletin, which is released monthly. Depending upon the category of visa, visas might be immediately available or the visa category might be backlogged because of quotas in the category.
The Visa Bulletin can be found at: http://travel.state.gov/visa/bulletin/bulletin_1360.html.
Applying for Permanent Residence: Adjustment of Status/Consular Processing of Immigrant Visa
The last step in the green card process will be for the foreign national employee to either adjust his/her status to that of a permanent resident in the United States or by applying for a visa at a U.S. Consulate if outside the United States.
When one files for adjustment of status, one can also file for an Employment Authorization Document (“EAD” or “work permit”) and Advance Parole, which allows one to travel in and out of the United States. Currently the processing times for employment-based adjustment of status is approximately six months after filing the Form I-485. Usually there is no interview; the approval and permanent resident card is sent to the beneficiary in the mail.
For individuals who choose consular processing, the approved petition is sent to the National Visa Center which then collects the visa processing fee and required documentation for the immigrant visa. When a visa becomes available, the case is sent to the consulate and the applicant is interviewed at the consulate. Spouses and unmarried children under 21 can accompany the principal beneficiary or can follow to join at a later date.
Permanent Residence for Asylees
Individuals granted asylum may apply for permanent residence one year after the grant of their residence.
Permanent Residence for VAWA Beneficiaries
Pursuant to the Violence Against Women Act (VAWA), there are special permanent residence procedures in place for individuals who were abused, or whose children were abused, by a United States Citizen or Lawful Permanent Resident spouse or parent. If the individual can demonstrate that he or she was the victim of physical abuse or emotional cruelty at the hands of such a spouse, or that his or children were so abused, USCIS can approve and immigrant visa petition that can replace the immigrant visa usually filed by a spouse. Similarly, children who were abused by a U.S. Citizen or Lawful Permanent Resident parent or step-parent can also obtain an immigrant visa petition. These petitions, known as “self-petitions”, can be used in lieu of a petition filed by the abusive family member to obtain permanent residence.
The petition, along with evidence of the marriage, the abuse, and of the applicant’s good moral character, is submitted to USCIS’ Vermont Service Center. Once the petition is approved, the applicant may file an application for adjustment of status with a copy of the approved petition, if visas are available. The District Office will then schedule an interview for adjudication of the application.