One of the most important paths to permanent residence is through employment, and there are many categories (called “preferences”) for employment-based immigration. We can help determine the best preference(s) to pursue and then work the parties through the steps to permanent residence.
In most instances the following steps are involved in obtaining permanent residence through employment:
- Prove that there are no minimally qualified U.S. workers through the permanent labor certification process with the U.S. Department of Labor. This is one of the most deceptively complex areas of immigration law, requiring formulations of job duties and requirements that are not natural for employers, who normally want the most qualified person. Several types of positions below do not require labor certification at all, which makes those categories much more attractive than the others.
- File an immigrant petition to show that, based on the foreign worker’s qualifications meeting a legitimate employer’s labor certification or some exemption from it, the alien worker fits one of the preference categories discussed below and is therefore one of the types of workers whom the U.S. generally wants to become permanent residents.
- Wait until the alien’s case, marked by the date of initial filing of the labor certification application or immigrant petition, moves to the top of any waiting list, as charted in the State Department’s Visa Bulletin disseminated each month.
- Show that the worker, spouse, and unmarried children under 21 are not any of the types of people who are inadmissible to the U.S., either through adjustment of status to permanent residence within the U.S. or through processing for an immigrant visa at a U.S. consulate outside the U.S. and entering as a permanent resident.
The law divides employment-based immigrants into 5 preference categories (“EB-1” through “EB-5”), each with its own requirements, potential backlogs, and sub-categories.
- Aliens of Extraordinary Ability, who may even sponsor themselves, usually showing they meet at least 3 of 10 criteria reflecting international acclaim of someone in the top handful in his field.
- Outstanding Professors or Researchers, including researchers in private companies with research staffs, who meet at least 2 of 6 criteria at a very high level.
- Executives and Managers of Multinational Businesses, explained on a separate page of this site.
- Professionals with Advanced Degree, or B.S. degree plus at least 5 years experience, and the job requires advanced degree or equivalent.
- Persons with Exceptional Ability in the Arts, Sciences or Business, showing at least 3 of six factors less demanding than extraordinary ability.
- Skilled workers or professionals, requiring at least 2 years of specific education, training, and/or experience. Nurses and physical therapists are uniquely exempt from labor certification under DOL’s Schedule A.
- Unskilled workers, requiring less than 2 years preparation. Certain common positions on schedule B are more difficult to certify, but still possible.
EB-4: Religious workers, and other “special immigrants” constituting a hodge podge of qualified groups not much related to employment except for employees or former employees of the U.S. government abroad.
EB-5: Investors of $1 million or $500,000 in a business creating at least 10 jobs for U.S. workers.
National Interest Waivers
An EB-2 position may by-pass the burdensome labor certification process if the alien can prove that her immigration would be in the U.S. “national interest.” At one time just about anyone working on a government grant project could show national interest Proving national interest, however, has become more difficult since 1999, when a controversial new 3-part test was announced:
- the alien’s endeavor has “substantial intrinsic merit,” meaning it will improve such things as the U.S. economy, wages and working conditions, education and training programs, health care, housing for the poor, or the environment. It helps if a U.S. government agency will express an interest directly;
- the activity “will be national in scope” in a geographical sense, impacting more than just a particular locality or region; and
- the alien has a “track record of success” justifying avoidance of the labor certification process.
There is a special arrangement for physicians who will be practicing medicine in “underserved” area of the U.S.
Labor certification is the process by which the prospective employer (who may also be the alien’s existing employer) demonstrates to the U.S. Department of Labor (DOL) that there are insufficient minimally qualified U.S. workers available and willing to perform the job at the normal wage rate (i.e. the “prevailing wage”) for that occupation in the geographic area of intended employment.
In short, the employer conducts a stylized and heavily documented recruitment effort seeking minimally qualified U.S. workers. If an insufficient number respond to the recruitment after a 30-day “quiet period,” the employer files electronically a puzzling Form ETA-9089 with DOL. DOL may approve the application, deny it, or “audit” the employer through random or qualitative selection to see the backup documentation that every applying employer must retain. DOL has begun to audit nearly half of all labor certification filings. A DOL denial may be appealed to the Board of Alien Labor Certification Appeals (BALCA).
In order to qualify, the job must be permanent (that is, having no definite end), full-time, and bona fide. The actual job requirements must be traditionally required for the position within the range reflected in DOL manuals or be justified by documented business necessity. The employer cannot tailor the job requirements to fit the special skills of the alien, and often a language requirement will be considered to be unduly restrictive unless it can be objectively documented to be a business necessity. In addition, as mentioned above, the employer must pay the “prevailing wage” for that occupation the geographic area of employment.
A surprising amount of analysis and strategy is needed in preparing the seemingly simple application forms, because numerous complex DOL rules exist about the requirements a particular type of job can justify, the types of experience that can be counted, the types of requirements that will slow the process down or jeopardize it, the types of advertising required, the manner by which U.S. candidates may be contacted and evaluated, and the grounds on which U.S. candidates may be rejected. Employers who fail to comply with the strict DOL recruitment and documentation rules may face sanctions including debarment from sponsoring any employees. As experienced immigration attorneys, we can be particularly helpful in helping the employer articulate the actual requirements, crafting the ads and applications, helping the employer to manage the process with higher chances for success the first time.
Immigration through an employer can be multifaceted, involving multiple government agencies and sophisticated interpretation of highly complex statutes, regulations, and evidence. We daily assist employers and foreign workers achieve their immigration goals through one of the 5 employment-based preferences listed above. Where it is possible, we strive to avoid the burdensome course of labor certification. We work with experts in the alien’s field and with the alien herself to craft presentations about EB-1 or national interest waiver eligibility. Where labor certification is the only option, we successfully navigate employers each day through this intricate process. Meanwhile, we help the alien maintain temporary employment authorizing status.
Consult with us for assistance with a case.