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Types of Employment Based Green Card

27 May 2020

Types of Employment Based Green Card

There are several ways to get a green card. You could go through a sponsoring family
member, use investment funds, or even gain asylum. However, one of the more
popular methods is to obtain an employment-based green card by having your
employer sponsor you.

Overview

The Immigration and Nationality Act provides a yearly minimum of 140,000
employment-based immigrant visas which are divided into five preference categories.
They may require a labor certification from the U.S. Department of Labor (DOL), and
the filing of a petition with the United States Citizenship and Immigration Services in
the Department of Homeland Security (USCIS).

Categories

Employment First Preference (EB-1)


Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers
must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign
Worker, filed with USCIS.

Within this preference there are three sub-groups:


- Persons of extraordinary ability in the sciences, arts, education, business, or athletics:
Applicants in this category must have extensive documentation showing sustained
national or international acclaim and recognition in the field of expertise. Such
applicants do not have to have a specific job offer so long as they are entering the U.S.
to continue work in the field in which they have extraordinary ability. Such applicants
can file their own petition with the USCIS, rather than through an employer.
- Outstanding professors and researchers with at least three years experience in teaching
or research, who are recognized internationally. No labor certification is required for this
classification, but the prospective employer must provide a job offer and file a petition
with the USCIS.
- Certain executives and managers who have been employed at least one of the three
preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S.
employer. The applicant must be coming to work in a managerial or executive capacity.
No labor certification is required for this classification, but the prospective employer
must provide a job offer and file a petition with the USCIS.

Employment Second Preference (EB-2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts,
Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any
unused Employment First Preference visas.
All Second Preference applicants must have a labor certification approved by the DOL,
or Schedule A designation, or establish that they qualify for one of the shortage
occupations in the Labor Market Information Pilot Program (later).

A job offer is required and the U.S. employer must file a petition on behalf of the
applicant. Aliens may apply for exemption from the job offer and labor certification if
the exemption would be in the national interest, in which case the alien may file the
petition, Form I-140, along with evidence of the national interest.
There are two subgroups within this category:
- Professionals holding an advanced degree (beyond a baccalaureate degree), or a
baccalaureate degree and at least five years progressive experience in the profession.
- Persons with exceptional ability in the arts, sciences, or business. Exceptional ability
means having a degree of expertise significantly above that ordinarily encountered
within the field.
In addition, you could also apply for the EB-2 National Interest Waiver, or NIW. This is
a special situation in which the holder can bypass the PERM Labor Certification and job
offer requirements, meaning that applicants can self-petition for the NIW. However, you
need to show that your work is beneficial enough that it would be in the nation’s best
interest for the USCIS to waive the PERM and job offer requirements.
An EB2 visa lawyer can help you identify which subgroup may be more appropriate for
your situation.

Employment Third Preference (EB-3)


Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers
receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First
and Second Preference visas.
All Third Preference applicants require an approved I-140 petition filed by the
prospective employer. All such workers require a labor certification, a Schedule-A
designation, or evidence that they qualify for one of the shortage occupations in the
Labor Market Information Pilot Program.
There are three subgroups within this category:
- Skilled workers are persons capable of performing a job requiring at least two years”
training or experience;
- Professionals with a baccalaureate degree are members of a profession with at least a
university bachelor’s degree; and
- Other workers are those persons capable of filling positions requiring less than two
years” training or experience.

Employment Fourth Preference (EB-4)


Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants
must be the beneficiary of an approved I-360, Petition for Special Immigrant, except
overseas employees of the U.S. Government who must use Form DS-1884. Certain
spouses and children may accompany or follow-to-join the principal special immigrant.
Different types of special immigrants provided for under immigrant law are
listed below:

- Broadcaster in the U.S. employed by the International Broadcasting Bureau of the
Broadcasting Board of Governors or a grantee of such organization
- Minister of Religion
- Certain Employees or Former Employees of the U.S. Government Abroad;
- Employee of the Mission in Hong Kong
- Certain Former Employees of the Panama Canal Company or Canal Zone Government
- Certain Former Employees of the U.S. Government in the Panama Canal Zone
- Certain Former Employees of the Panama Canal Company or Canal Zone Government
on April 1, 1979
Interpreters and translators of Iraqi or Afghan nationality who have worked directly
with the United States armed forces or under Chief of Mission authority as a translator
or interpreter for a period of at least 12 months and meet requirements.
This classification has an annual numeric limitation of 500 visas through FY 08. B. Iraqis
who have provided faithful and valuable service while employed by or on behalf of the
U.S. government in Iraq for not less than one year after March 20, 2003, and have
experienced an ongoing serious threat as a consequence of that employment.
This provision was signed into law in January 2008, creating 5,000 special immigrant
visas each year for the next five years. The Department of State and the Department of
Homeland Security are establishing regulations and procedures to permit applications
under the new legislation to begin as soon as possible.
At this point, USCIS is unable to accept applications for this category of visa until those
regulations and procedures have been implemented.
- Certain Foreign Medical Graduates (Adjustments Only);
- Certain Retired International Organization employees;
- Certain Spouses of a deceased International Organization Employee;
- Juvenile Court Dependent (no family member derivatives);
- Alien Recruited Outside of the United States Who Has Served or is Enlisted to Serve in
the U.S. Armed Forces;
- Certain retired NATO-6 civilians;
- Certain surviving spouses of deceased NATO-6 civilian employees;
- Alien beneficiary of a petition or labor certification application filed prior to Sept. 11,
2001, if the petition or application was rendered void due to a terrorist act of Sept. 11,
2001;
- Certain Religious Workers.

Employment Fifth Preference (EB-5)


Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All
applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with
USCIS.

To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on
the employment rate in the geographical area, in a commercial enterprise in the United
States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident
aliens, or other lawful immigrants, not including the investor and his or her family.

Employment Based Green Card Labor Certification


A very important step in almost every employment based green card process is to have
an employer obtain a PERM Labor Certification on your behalf. This is a procedure that
involves having your employer go through an extensive recruitment process in order to
ensure that you are not displacing any qualified U.S. workers.
Your employer will first need to file to have the prevailing wage for your position
determined according to the location and others that are similarly employed. Once that
determination is received, your employer will need to run three kinds of
advertisements:
- Job order: this must run for at least thirty days
- Newspaper ads: this must be in a high-circulation paper on two separate Sundays
- Three auxiliary ads posted in areas like the internet, radio, or college campuses
After the ads have run their course, thirty days must be given for potential applicants to
respond. During this time, your employer must consider the qualified candidates and
give reasons for rejecting each one.
If no candidates take the position, then your employer must file an ETA-9089 form with
the Department of Labor. During this step, there is always the possibility that your
employer will be audited either randomly or through targeted process.
Once the ETA-9089 is approved and the PERM Labor Certification received, you can
begin the petitioning process for your employment based green card.
Keep in mind that the PERM is not required for EB-1 green cards as well as the EB-2
National Interest Waiver.

What About Audits?


The Department of Labor performs two kinds of audits: random audits designed to
maintain program integrity and targeted audits to stop employers from taking
advantage of the system.
Targeted audits can be triggered by incomplete or inconsistent information on the
advertising report. It can also occur if the Certifying Officer (CO) determines that the
report does not match what was predicted for your industry and geographic location.
If your employer is audited, this will add several months to your PERM processing time.
Be sure to work alongside your immigration attorney to make sure that the audit is
handled appropriately and that your employment-based green card is not jeopardized.

Individual Labor Certification

The applicant must complete DOL Form ETA-750B, Statement of Qualifications of Alien,
and send this completed form to the prospective employer who completes Form ETA-
750A, Application for Alien Employment Certification, Offer of Employment.
The prospective employer submits both forms to the local office of the State
Employment Service in the area in the United States where the work will be performed.
The employer will then be notified by the appropriate regional office of the DOL of its
approval or disapproval.

Schedule A Designation


The Department of Labor has made a schedule of occupations for which it delegates
authority to USCIS to approve labor certifications. Schedule A, Group I, includes
physical therapists and nurses.
Schedule A, Group II includes aliens of exceptional ability in the sciences and arts
(except performing arts). To apply for Schedule A designation, the employer must
submit a completed, uncertified Form ETA-750 in duplicate to USCIS along with the I-
140 petition.

Labor Market Information Pilot Program


The Immigration Act of 1990 provides for the DOL to establish a Labor Market
Information Pilot Program which will define up to ten occupational classifications in
which there are labor shortages.
For aliens within a listed shortage occupation, a labor certification will be deemed to
have been issued for purposes of an employment-based immigrant petition. USCIS can
provide further information.

Petitions


All intending immigrants who plan to base their immigrant visa application on
employment in the United States must obtain an approved immigrant visa petition from
USCIS.
If a necessary labor certification is granted, the employer may then file a Form I-140,
Petition for Prospective Immigrant Employee, with USCIS for the appropriate
employment-based preference category. If you are applying for the EB-5 investor green
card, you will need to file the I-526 instead.

Premium Processing


The petition usually takes an average of six months to be processed, though it depends
on the service center that is processing your petition. In many cases, the I-140 can be
expedited to 15 calendar days if you choose to use the optional premium processing
service for an additional fee.
However, petitions submitted for the EB-1C and EB-2 NIW are unavailable for the
premium processing service. It is also important to note that premium processing doesnot increase your chances for approval and cannot be used to expedite any other step
in the employment-based green card process.

Numerical Limitations


Each year, there are a limited number of green cards that are available for each
category according to each particular country. If more citizens of a particular country
apply for one category, then that category will be oversubscribed, and a backlog will
build. From there, the USCIS will go in chronological order according to when the
petition was received.
The filing date of a petition becomes the applicant’s priority date. Green cards cannot
be issued until an applicant’s priority date is reached. In certain heavily oversubscribed
categories, there may be a waiting period of several years before a priority date is
reached. Check the current visa bulletin released monthly by the Department of State
for the latest priority dates.


General questions regarding the Employer’s Petition for PERM

1. Full legal name of Employer:
2. Company or Organization name, if any (dba)
3. Company Address:
4. Company Telephone and Fax Number:
5. Address where alien will work, if other than Company Address:
6. Name of employer’s Representative for receipt of Resume during
Recruitment Period:
7. Email Address of Employer’s Contact Person:
8. Telephone and Fax of employer’s contact person
9. IRS Tax ID #
10. STATE TAX ID Number
11. Business form of employer (corporation, partnership, sole proprietorship)
12. Date business formed
13. Nature of employer’s activity
14. Current number of employees, if any
15. Name and title of official who will sign the forms,
16. Email address of Official Signatory of the Employer:
17. Job Title of Offered Position:
18. Job duties of Offered Position
19. Minimum requirement for the Position, i.e. Bachelors, Masters, or State
Licensure?
20. Is a Web Site available for the Employer
21. Does the Company place Job Openings on the Employer’s Web-Site
22. Direct email address of Official for Contact by the Department of Labor
22. Gross Income (optional)
23. Net Income (optional)
24. Is there any familial or business relationship with the prospective
employee

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