Under current immigration law, employers may sponsor either current or potential employees for permanent resident status, colloquially known as a “green card,” which permits the sponsored to live and work indefinitely in the United States. With certain limited exceptions noted below, a foreign national may be eligible for permanent residence through self-sponsorship.
The following are the five basic types of business immigrant visas, classified by a “preference category.” All of these preference categories are subject to annual quota levels based on the sponsored foreign national’s preference category and country of birth. Currently, the relevant statute sets a numerical limitation of 140,000 immigrant visa numbers for employment-based immigrants. Backlogs have arisen in the past few years, especially for the EB-2 classification for Indian and Chinese nationals and EB-3 preference categories for all countries, due to an oversubscription by that particular preference category and country.
First Preference (EB-1) includes individuals of “extraordinary ability” in their particular field of expertise, outstanding researchers and professionals, and multinational managers and executives. This preference category receives 28.6% of the total number of employment-based immigrant visas, plus any numbers not required for fourth and fifth preferences.
Second Preference (EB-2) includes individuals holding advanced degrees or the equivalent, individuals with “exceptional ability,” and self-sponsorship under the National Interest Waiver provisions. This category of employment based immigrants receives 28.6% of the total number of employment-based immigrant visas, plus any numbers not used for first preference.
Third Preference (EB-3) includes skilled workers (employment requires at least two years of work experience) or professionals (employment requires at least a bachelor’s degree). This category of employment based immigrants receives 28.6% of the total number of employment-based immigrant visas, plus any numbers not used for first preference, but not more than 10,000 of which are to be allocated to “Other Workers (employment experience required is less than two years).
Fourth Preference (EB-4) includes “special immigrants,” which is composed of religious workers, military personnel, and broadcasters with the International Broadcasting Bureau of the Broadcasting Board of Governors. This category receives 7.1% of the worldwide level of employment-related immigrant visas available annually, except that religious workers are subject to a quota of 5000 and broadcasters have an annual numerical limitation of 100.
Fifth Preference (EB-5) includes those who make a substantial investment ($500,000 or more) in a business that also creates employment for at least 10 workers. This category receives 7.1% of the worldwide level of employment-related immigrant visas available annually, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in certain regional centers.
PERM Labor Certification Process for EB-2 & EB-3
The large majority of employment-based permanent residence cases fall within the second and third preference through a process called the PERM labor certification application. With this process regulated by the U.S. Department of Labor, a sponsoring U.S. employer must demonstrate, through a good faith recruitment process, that there are not sufficient workers able, qualified, and willing to perform the work of the sponsored foreign national, and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. If the PERM labor certification application can be filed and is subsequently approved, the employer next files an Immigrant Visa Petition (Form I-140) with the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) on behalf of the prospective foreign national employee. This petition requires a statement by the employer that it has a permanent U.S. position for the foreign national which matches the description in the PERM labor certification application. In addition, the employer must submit documentation evidencing its ability to pay the foreign national the proffered wage both at the time the PERM application was filed and at the present time. The foreign national must also submit documentation showing that she had all of the qualifications listed on the PERM application prior to commencing employment with the sponsoring employer.
If a quota number is available to the foreign national, she or he may file the third and final step of this process, the application for permanent residence (Form I-485) simultaneously with the Form I-140 immigrant visa petition. If not, the foreign national must wait until an immigrant visa number is available. The immigrant visa quota is allocated based on the employee’s “priority date” (i.e. the date of filing of the PERM labor certification application). It can take several years for quota numbers to be available, particularly for citizens of countries such as India and China with a high volume of immigrants to the United States. Upon the approval of the permanent residence application, the employee and his or her dependents become permanent residents of the United States, and the USCIS issues green cards to them through the mail.
Foreign nationals who qualify for one of the first preference classifications or the second preference National Interest waiver are exempt from this labor certification process. These foreign nationals can demonstrate they are extraordinary in their field, professors or researchers who are outstanding in their field, those whose work will benefit the “national interest,” or multinational executives and managers transferred from an overseas affiliate, parent, or subsidiary of a U.S. business. In addition, foreign nationals applying as persons of extraordinary ability (under the first preference) or through the National Interest Waiver (under the second preference) do not require employer sponsorship and may file themselves for permanent residence.
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