Employer-Sponsored Permanent Residence
Obtaining Permanent Resident status in the United States based on employment is among the most complex immigration processes, involving many steps and possible choices. In most cases a U.S. employer who needs the services of a particular foreign national must petition and pay all legal fees and costs.
The most common route for employer-sponsored permanent residence takes place in three steps: PERM labor certification, I-140 immigrant visa petition and adjustment of status. (For shortcuts to permanent residence that bypass Step 1, see Self-Sponsored Permanent Residence based on achievement and Alternate Employer-Sponsored Permanent Residence Options below.)
Step 1: PERM Labor Certification
The employer must show that there are no able, willing or qualified U.S. workers to fill the position by filing an online application (Form ETA 9089) with the U.S. Department of Labor (DOL). The employer must first obtain a “prevailing wage” determination from the DOL and then advertise the position to American workers under strict guidelines to demonstrate a good faith recruitment effort to find qualified U.S. workers. This is the lengthiest and most complex portion of the employment-based permanent residence process.
Issues that can arise in preparing for a PERM case and counseling employers include:
- Coding and classifying the position
- Analyzing and obtaining proof of the employee’s work experience
- Guiding the employer regarding correct recruitment procedures
- Responding to DOL audits
Certain college and university faculty, physical therapists, registered nurses, and outstanding scientists and artists may qualify for more streamlined DOL and USCIS procedures.
Step 2: I-140 Immigrant Visa Petition
After obtaining PERM labor certification, the employer files a petition with U.S. Citizenship & Immigration Services (USCIS) (Form I-140) to classify the applicant under one of the three employment-based immigrant preference categories. USCIS verifies that the employee meets all job requirements, and that the employer has the ability to pay the required prevailing wage for the position. Prior nonimmigrant filings, such as H-1B petitions and extensions, may also be reviewed by USCIS for consistency during this step.
The three employment-based preference categories are:
First Preference (EB-1): for persons with “extraordinary ability” in the sciences, arts, education, business, or athletics; outstanding professors and researchers; or multinational executives and managers. There is no PERM labor certification requirement under First Preference. Employers may file I-140 petitions directly with USCIS, and workers who demonstrate extraordinary ability in their field may self-petition. (For more information on extraordinary ability petitions, see Self-Sponsored Permanent Residence based on achievement.)
Second Preference (EB-2): for positions that require an advanced degree or equivalent, or for individuals who demonstrate “exceptional ability” in their field. A PERM labor certification must first be obtained, unless a waiver of the job offer can be shown to be in the national interest of the United States. (For more information on national interest waivers, see Self-Sponsored Permanent Residence based on achievement). Kanter and Romo Immigration staff are specialists in working with employers and self-petitioning employees to develop the best strategy and evidence for successful National Interest Waiver filings.
Third Preference (EB-3): for skilled workers in jobs requiring at least two years of experience, professionals holding at least a bachelor’s degree, or unskilled workers in shortage occupations. A PERM Labor Certification must first be obtained from the DOL before the I-140 petition may be filed by the employer.
Step 3: Adjustment of Status to Permanent Residence
Once an approved I-140 visa petition is obtained in one of the three employment-based preference categories, a visa number must become available for the foreign worker and any dependents before any further applications can be made. Availability depends upon the principal applicant’s preference category and country of birth. Applicants must show continuous maintenance of nonimmigrant status and any issues of inadmissibility must be addressed. Such issues could include a prior criminal record, inaccurate statements to authorities, or substantive changes in the position or employer’s status.
Immigrant visa numbers are allocated by Congress, and the number of immigrants admitted in various categories for each fiscal year cannot be increased without Congressional action. For workers born in certain countries such as India and China, immigrant visa numbers have been backlogged under the employment-based second preference. Employment-based immigrant visa numbers under the third preference category have been backlogged for many years for citizens of all countries. Therefore, careful planning is essential for extensions and changes of nonimmigrant work visas so that applicants can maintain lawful status in the U.S. until a number becomes available. Occasionally, the best or only option is to complete the process through consular processing in the applicant’s home country rather than in the U.S.
Throughout all of these steps, questions frequently arise on the structure of the job offer, timing of renewal of temporary work visa and permits, foreign travel, family immigration, promotions and changes in employment, among other issues. Prior nonimmigrant filings, such as H-1B petitions and extensions, may be reviewed by USCIS. There are also very frequent changes in regulations and legal standards. We offer expert, accessible and up-to-date legal advice throughout the process.
Alternate Employer-Sponsored Permanent Residence Options
Outstanding Professors and Researchers
Certain foreign nationals may obtain permanent resident status in the United States without undergoing the PERM labor certification process if they qualify as an outstanding professor or researcher. To be considered “outstanding,” the professor or researcher must be internationally recognized as outstanding in his or her academic field in addition to meeting other specific criteria, such as three years teaching or research experience in the field and holding a tenure or tenure-track position or comparable research position at an institution of higher education. This process is employer-driven and an individual may not self-sponsor for this classification.
Schedule A Group II
Schedule A Group II is an employer-sponsored immigrant visa petition (I-140) that allows foreign nationals in the sciences, arts and business to obtain permanent resident status in the United States without having to undergo the PERM labor certification process. To qualify for this category, the foreign national must possess exceptional ability and must have garnered widespread acclaim in his or her field of endeavor. A foreign national cannot self-sponsor under this category.
Extraordinary Ability (EB1) and National Interest Waivers (EB2)
Please note that employers may sponsor foreign national employees under the Extraordinary Ability and National Interest Waiver categories, which in the alternative, may also be self-sponsored. Please see Self-Sponsored Permanent Residence options based on achievement for more detailed information about these categories.