Nov 4

Understanding Employment-Based Immigration

Understanding Employment-Based Immigration

The U.S. is experiencing a shortage of qualified workers in a number of fields, including technology and engineering. One solution to this problem has been to tap into the vast pool of highly qualified computer software specialists and engineers in other countries through foreign work visas such as the H-1B.  However, such visas do not grant permanent residency and require renewal every three years.  A potential long-term option is to sponsor employees for legal permanent residency (green card) through employment-based immigration.   The purpose of this article is to provide a broad overview of the employment-based immigration process.

There are a number of preference categories for which employers can apply to sponsor foreign nationals for permanent residency. However, for the purpose of this article, we will focus primarily on the second and third categories commonly known as EB-2 and EB-3 since they encompass the vast majority of foreign applicants.

Generally, the EB-2 category is reserved for professionals who hold an advanced degree in their field or foreign nationals with exceptional abilities. The EB-3 category is reserved for skilled workers or professionals within a field that requires at least a bachelor’s degree. While there are differences between the processing time for these two categories, the three-step application process is essentially the same.

 

STEP 1 – LABOR CERTIFICATION

A labor certification is a determination made by the Department of Labor (DOL) that there is no minimally qualified, willing and able U.S. worker to do the job sought by the employer. The employer must demonstrate successful completion of a recruitment process that follows established protocols set forth by the DOL.  If, after the recruitment period, the employer cannot find a qualified U.S. worker, the employer may file a labor certification application with the DOL, which may choose to approve, audit, or deny the application.

 

STEP 2: Immigrant Visa Petition

Upon approval of the labor certification, the employer is required to file an immigrant petition for the foreign national with the U.S. Citizenship and Immigration Services (USCIS). The employer must include the approved labor certification and evidence that the sponsored worker meets the minimum requirements for the sponsored position. The employer is also required to submit financial documents indicating its ability to pay the prevailing wage established for the position.

 

STEP 3: Application for Permanent Residence

The final step is the individual’s application for permanent residence status with USICS. In many cases, sponsored workers face a significant wait to apply for and receive a grant of permanent residence status.  There are three key factors that determine the wait period for a visa. The first factor is the priority date, which is the date of filing of the labor certification. The second factor is the visa preference category into which the foreign worker is classified. The third factor is the employee’s country of birth or citizenship. For example, citizens of India or China experience a longer wait for EB-2 and EB-3 categories. If the foreign worker is present in the U.S. and a visa is immediately available, the worker may apply to adjust his or her status from a non-immigrant such as an H-1B visa holder to a legal permanent resident (green card holder).

Employment-based immigration is a multifaceted process that must be meticulously completed.  An error in any component of the application can make the difference between success or failure. An understanding of the process is helpful; however, it is highly advisable to seek the counsel of an experienced immigration attorney if your company is looking to sponsor a foreign national for permanent residency.

For more information, visit us at bostonimmigrationsolutions.com.

Disclaimer: The information found in this article is for informational purposes only. It is not intended to be legal advice and does not establish an attorney-client relationship. 

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