Employment based immigration is based on a preference system. The Immigration Act of 1990 created the following 5 preference categories.
First Preference (EB-1 Category) – This covers 3 categories of potential immigrants. These aliens do not have to go through the PERM labor certification process.
A. Persons of Extraordinary Ability – Alien with (1) extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation; (2) who seeks entry to continue work in the area of extraordinary ability; and (3) whose entry will substantially benefit the United States.
B. Outstanding Researchers and Professors – Alien who (1) is recognized internationally as outstanding in a specific academic area; (2) has 3 years experience in teaching or research in the academic area; and (3) who seeks entry for (a) a tenure teaching position, (b) a comparable position at a university or institute of higher education to conduct research, or (c) a comparable position to conduct research with a private employer if it employs at least 3 persons full-time in research activities and the department or institution has achieved documented accomplishments in the academic field. Again, extensive documentation proving that the researcher is outstanding or has international acclaim is required by the USCIS.
C. Multinational Executives and Managers – Alien who (1) is employed for one year in the last three years by a firm or corporation or other legal entity or an affiliate or subsidiary of a United States company; and (2) who seeks entry in order to continue to render services to the same employer or to a subsidiary or affiliate in a capacity that is managerial or executive in nature.
Second Preference (EB-2 Category) – Members of the professions holding advanced degrees or their equivalent, or who because of their exceptional ability in the sciences, arts or business will substantially benefit the national economy, cultural or educational interests, or welfare of the United States and whose services are sought by an employer in the United States. Aliens under this category must have a job offer and a labor certification. The USCIS will waive the requirement of obtaining a labor certification for aliens who prove that their entry is in the United States national interest. This is commonly referred to as the national interest waiver.
Third Preference (EB-3 Category) – Applies to (1) aliens who hold a baccalaureate degree and who are members of a profession; or (2) aliens who seek entry in a full-time permanent job requiring at least two years of training or experience; or (3) aliens who seek entry as workers with less than two years of training or experience.
Fourth Preference (EB-4 Category) – Aliens who seek entry as Special Immigrants. This category is often used by religious workers who (1) for at least two years immediately preceding the time of application have been members of a religious denomination having a bona fide, nonprofit, religious organization in the United States, (2) seek entry to the United States solely to carry on their vocation as a minister, and (3) have been carrying on such vocation, professional work or other work continuously for at least a two year period.
Fifth Preference (EB-5 Category) – Aliens who invest $1,000,000.00, or under certain circumstances $500,000, in a new commercial enterprise that employs 10 workers full- time and manages the business on a day-to-day basis or through policy formation.
The processing times for various employment based applications at USCIS offices around the country, as well as the current visa bulletin for the employment based preference system, can be viewed at CIS Processing Times.
The Managers/Executive, Outstanding Researcher, and Extraordinary Ability categories do not require a labor certification. Persons in these categories can directly file the I-140 Immigrant Petition for Alien Worker and the I-485 Adjustment of Status (if their priority date is current). The Second and Third Preference categories require a labor certification to be filed and certified by the Department of Labor prior to filing an I-140 petition or I-485 adjustment application.
What is a Labor Certification (PERM)?
The point of this stage is to test the US labor market to see if there is a qualified US citizen or green card holder for the job offered. This involves our reviewing all of an alien worker’s credentials prior to joining the employer and linking them to (a) a workable job title and job description which is the same or similar to what you actually do now and will be holding in the future, (b) determining the prevailing wage for the job in this geographic market, and (c) interviewing candidates who respond to advertising for this job.
As a preliminary step in this process, the employer must first obtain a prevailing wage determination before engaging in any recruitment efforts. The wage determination will be valid for filing a period of 90 days to one year after issuance by the State Workforce Agency (SWA), depending on the state office. The employer must file the labor certification or commence recruitment within the validity period specified on the prevailing wage form. As mandated by law, the employer will be required to pay the employee one-hundred percent (100%) of the prevailing wage upon ultimate approval of the employee’s permanent residency application.
Under the new labor certification program called Program for Electronic Review Management (PERM), an employer is required to place two Sunday advertisements in a newspaper of general circulation appropriate to the occupation. These recruitment steps must occur at least 30 days but not more than 180 days before the filing of the labor certification. In the case of jobs requiring experience and an advanced degree, the second Sunday advertisement can be replaced by an ad in an appropriate professional journal, although this is not required. The newspaper advertisements must:
- contain the name of the employer;
- direct applicants to report to, or send resumes to the employer;
- provide a job description specific enough to apprise U.S. workers of the job opportunity; and
- indicate the geographic location of the job opportunity clearly enough to permit applicants to understand the relative commuting distance.
If a wage rate is included in the ad, it should not be a rate lower than the prevailing wage for the position.
Furthermore, employers recruiting for professional positions, defined as those requiring a college or higher degree, would also have to select three other additional recruitment steps that would be required before filing the application. Acceptable recruitment channels include:
- the employer’s Internet site;
- job fairs;
- job search websites;
- private employment agencies;
- on-campus recruitment;
- trade or professional organization;
- employee referral program;
- campus placement office postings;
- local and ethnic newspapers where appropriate; and
- radio and television ads
Employers are not required to submit recruitment results and documentation with the labor certification filing. PERM requires employers to maintain documentation of recruitment efforts that were undertaken and the results thereof, including the lawful job-related reasons for rejecting U.S. workers who applied for the job, but the documentation does not need to be submitted with the application. U.S. workers who could acquire skills in a reasonable period of on-the-job training may not be rejected. The employer must sign a report describing the recruitment steps undertaken and the results achieved, the number of hires, and if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. Resumes and other documentation must also be maintained. In the event of a Department of Labor (DOL) audit, the certifying officer may request the U.S. workers resumes or applications, sorted by reasons the workers were rejected. An employer is required to maintain documentation of recruitment efforts for five (5) years from the date the labor certification is filed with the DOL.
The employer will also be required to give notice of the planned filing of the labor certification to the employees’ bargaining representative in the area of intended employment, if there is such a representative. If there is no bargaining representative, employers will be required to post a notice about the job opportunity for 10 consecutive business days in a conspicuous place at the location of employment. The notice will need to be posted between 30 and 180 days prior to filing the application. Moreover, employers must publish the notice in any and all in-house media used to fill positions in the organization.
In addition to the posting, the employer must place a job order with the state employment office serving the area of intended employment. The order must be placed for a period of 30 days. This recruitment step must occur at least 30 days but not more than 180 days before the filing of the application.
If there has been a layoff by your company in the area of intended employment within six months of the filing of the labor certification application, the employer must attest to and document notification and consideration of potentially qualified U.S. workers involved in the layoff and the results of such notification.
Upon submission of the labor certification, cases may be flagged for audit on the basis of certain factors or simply randomly selected. The audit process may include a request for additional documentation, after which the certifying officer can certify or deny the application or call for supervised recruitment. If an application is selected for audit, the employer will be notified and required to submit, within 30 days, documentation to verify the information stated in or attested to on the application.
I-140 Immigrant Visa Petition
After the labor certification is approved by the US Department of Labor, an employer can file the I-140 Immigrant Visa Petition notifying the United States Citizenship and Immigration Service (USCIS) that the job opening exists, that the alien employee is a qualified applicant and that the company is financially viable to pay the pre-chosen prevailing wage for the job in the geographic market. Documentation proving that the employer is financially viable and that the alien worker meets the minimum education and/or experience requirements for the offered job must be submitted with this petition.
Again, the following types of employment-based cases start with the I-140 stage and bypass the PERM labor certification altogether: 1) outstanding researcher; 2) extraordinary ability; 3) national interest waiver; and 4) multinational executive/manager.
I-485 Permanent Residence Application and Pending Employment Authorization Document (EAD) and pending Travel Document (AP)
This is the final green card clearance paperwork which is for the employee and his or her family. The I-485 can only be filed when the worker’s ‘priority date’ is current. For an explanation of priority dates and visa availability, please refer to the section on Visa Availability and Priority Dates.
During the adjustment stage, the USCIS will need biographical and medical data so they can be sure that the alien worker is not excludable from the US for medical, criminal or other reasons.
Visa Availability and Priority Dates
A person can only file an adjustment of status application or obtain permanent residency through consular processing if a visa number is available to them. The United States Department of State publishes visa availability through the Visa Bulletin for all employment-based categories on its web site at http://travel.state.gov. A visa number is available to you if the date on Visa Bulletin for your category (EB1, EB2, or EB3) and country of nationality is at least your priority date or higher. This means that your priority date is ‘current’ and you can file an I-485 Adjustment of Status. If a priority date is ‘current’ at the date of filing the I-140 petition, it can be filed together with the I-485 adjustment application.
A priority date is determined by the date a labor certification is filed, or in the case where a labor certification is not needed, the date an I-140 is filed.