An immigrant is a foreign national
who has been authorized to live and work permanently
in the U.S. Those who wish to become an immigrant based
on a permanent employment opportunity in the U.S., or
employers wishing to sponsor someone for lawful permanent
residence based on permanent employment in the U.S.,
must meet a number of requirements:
- First, foreign nationals and
employers must determine whether the foreign national
is eligible for lawful permanent residence.
- Second, most employment categories
require that the U.S. employer complete a labor certification
application and submit it to the federal Department
of Labor (DOL).
- Third, U.S. Citizenship and Immigration
Services (USCIS) must approve an immigrant visa petition
filed by the employer for the person wishing to immigrate.
If a labor certification is needed, the immigrant
visa petition can only be filed after the DOL has
approved the labor certification. The employer acts
as the sponsor (or petitioner) for the applicant (or
beneficiary) who wants to live and work on a permanent
basis in the U.S.
- Fourth, if the applicant is already
in the U.S., he or she may apply to adjust to permanent
resident status. This is called adjustment of status.
If the applicant is outside the U.S., he or she must
complete the process at his or her local U.S. consular
office. This is called consular processing.
This section provides an overview
of the labor certification process, adjustment of status,
and consular processing, followed by a summary of the
employment-based immigrant visa categories.
LABOR CERTIFICATION OVERVIEW
A permanent labor certification means that the Department
of Labor has certified to USCIS that there are no qualified
U.S. workers able, willing, qualified, and available
to accept the job at the prevailing wage for that occupation
in the area of intended employment and that employment
of the individual will not adversely affect the wages
and working conditions of similarly employed U.S. workers.
A new, streamlined permanent labor
certification program (Program Electronic Review Management,
or PERM) has been implemented. As of March 28, 2005,
new applications must be filed under PERM online or
at the appropriate National Processing Center. An employer
may choose to withdraw an earlier application and refile
the application for the identical job opportunity under
PERM. Otherwise, applications filed before March 28,
2005, are continuing to be processed at the appropriate
Backlog Elimination Center under the rules in effect
at the time of filing.
To qualify for permanent labor certification:
- the employer must be hiring the
foreign worker as a full-time employee;
- there must be a bona fide job
opening available to U.S. workers;
- job requirements must adhere
to what is customarily required for the occupation
in the U.S. and may not be tailored to the worker's
- the employer must document that
the job description does not contain unduly restrictive
job requirements, unless adequately documented as
arising from business necessity; and
- the employer must pay at least
the prevailing wage for the occupation in the area
of intended employment.
The employer must request a prevailing
wage determination from the state workforce agency (SWA)
having jurisdiction over the proposed area of intended
Except for a few occupations in short
supply known as Schedule A (see below) and applications
involving college or university teachers selected pursuant
to a competitive recruitment and selection process,
employers must attest, in addition to a number of other
conditions of employment, to having conducted a recruitment
before filing the application.
Before filing the labor certification application, the
employer must conduct a recruitment for U.S. workers
for the job opening, either under the standards for
professional occupations if the occupation is one for
which a bachelor's or higher degree is a customary requirement
or, for all other occupations not normally requiring
a bachelor's or higher degree, under the requirements
for nonprofessional occupations. The employer must show
that it has conducted a recruitment in good faith by
such activities as advertising the job opening adequately,
making appropriate attempts to contact prospective U.S.
workers, providing lawful, job-related reasons for rejecting
U.S. applicants, and providing the number of U.S. applicants
rejected in each category. The recruitment report does
not have to identify the individual U.S. workers who
applied for the job opportunity.
The Department of Labor is likely
to audit applications and request additional information
if the foreign national's qualifying work experience
or education was gained while employed by the sponsoring
employer, if there is a family or financial connection
to the employer, if the employer paid for education
or training, or if other specific issues arise. Employers
should prepare documentation relating to these issues
before filing the application and keep the documentation
for five years. If the Department of Labor is not satisfied
that the recruitment has been conducted in a satisfactory
manner, the agency may require the employer to conduct
additional supervised recruitment efforts. In addition,
the Department can require an employer to conduct supervised
recruitment for all future applications for a period
of two years.
Schedule A occupations.
Schedule A is a list of occupations for which there
are not a sufficient number of able, willing, qualified,
and available U.S. workers. Schedule A pre-establishes
that the employment of foreign workers in such occupations
will not adversely affect the wages and working conditions
of U.S. workers similarly employed.
The occupations listed under Schedule
- physical therapists
- professional nurses;
- individuals of exceptional ability
in the sciences or arts (except performing artists
- see below), including college and university teachers
of exceptional ability who have been practicing their
science or art during the year before application
and who intend to practice the same science or art
in the U.S. "Science or art" means any field
of knowledge and/or skill with respect to which colleges
and universities commonly offer specialized courses
leading to a degree, but workers do not necessarily
need to have studied at a college or university to
- performing artists, including
individuals of exceptional ability in the performing
arts whose work during the past 12 months required,
and whose intended work in the U.S. will require,
The filing date (the date the labor
certification application is filed) is used by USCIS
and the Department of State as the priority date for
measuring a person's place in line. After the labor
certification application is approved by the Department
of Labor, it should be submitted to the appropriate
USCIS service center along with an immigrant petition
for the worker.
If the foreign national is in the
U.S. with temporary work authorization, the last step
in the process is to file an application to adjust status
to permanent residence. If the foreign national resides
outside the U.S. or is ineligible to adjust status inside
the U.S., the last step is to file an immigrant visa
application at the U.S. embassy or consulate in the
foreign national's country of nationality or last foreign
residence. This is known as consular processing.
It takes approximately several months
to undergo consular process or adjustment of status.
In some cases, a foreign national who is eligible for
adjustment of status in the U.S. nevertheless may wish
to file an immigrant visa application abroad to complete
the green card process.
The Department of State's Visa Bulletin
summarizes the availability of immigrant visa numbers
each month. Allocations are made, to the extent possible
under the numerical limitations, for the demand received
in the chronological order of the reported priority
dates. If the demand cannot be satisfied within the
statutory or regulatory limits, the category or foreign
state in which demand was excessive is deemed oversubscribed,
and a cut-off date is set. Only applicants who have
a priority date earlier than the cut-off date may be
allotted a visa number. Once a visa number becomes available,
prompt filing is recommended because it is possible
for the cut-off dates to retrogress if a category becomes
oversubscribed. The Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html.
Contact your ABIL attorney for details
on how to conduct a successful recruitment, apply for
labor certification, prepare accompanying documentation,
and obtain a green card.
For more on this topic, see [add
links to ABIL attorney articles #7, 9, 10, 18]
ADJUSTMENT OF STATUS
Adjustment of status is a qualitative background check
for an individual already in the U.S. who wishes to
receive his or her green card here. There are numerous
requirements to be eligible for adjustment of status.
The most important ones require the person to have never
worked illegally in the U.S. or otherwise have violated
his or her status.
If the individual is filing based
on an offer of permanent employment in the U.S., he
or she will be required to submit an application to
register permanent residence or adjust status; a form
containing biographic information; a copy of the Notice
of Action showing that the immigrant visa petition has
been received or approved; and a medical examination
form, in addition to all required supporting documentation
as listed on the forms. The applicant also may submit
an application for work authorization or travel if he
or she wishes to work or travel while the adjustment
of status application is being processed.
Contact your ABIL attorney for help
with applications for adjustment of status and documentation
When an immigrant visa number becomes available, an
individual filing abroad may file the immigrant visa
petition at the local U.S. consular office. Although
consular processing of immigrant visa petitions generally
has been faster than adjustment of status application
processing in the U.S., visa applications now are subjected
to a higher degree of scrutiny because of post-9/11
security considerations and related delays are possible.
A comprehensive listing of links
to U.S. embassies, consulates, and diplomatic missions
is available at http://usembassy.state.gov/.
Contact your ABIL attorney for help
with consular processing and documentation requirements.
There are five categories for granting permanent residence
to foreign nationals based on employment skills: EB-1
priority workers; EB-2 workers with advanced degrees
or exceptional ability; EB-3 professionals, skilled
workers, and other workers; EB-4 special workers such
as those in a religious occupation or vocation; and
EB-5 immigrant investors.
EB-1 PRIORITY WORKER
The employment-based first preference category includes
individuals with extraordinary ability (EB-1-1), outstanding
professors and researchers (EB-1-2), and certain multinational
executives and managers (EB-1-3).
EB-1-1: "Extraordinary ability"
in the sciences, arts, education, business, or athletics
is demonstrated by sustained national or international
acclaim. The applicant's achievements must have been
recognized in the field through extensive documentation.
To be eligible for this classification, the applicant
must be one of that small percentage who have risen
to the very top of the field of endeavor. For example,
receipt of a major internationally recognized award,
such as a Nobel Prize, may qualify an applicant for
an EB-1 classification. Because few individuals receive
this type of award, alternative evidence of EB-1 classification
based on at least three of the ten types of evidence
outlined below is permitted:
- receipt of lesser nationally
or internationally recognized prizes or awards for
- membership in associations in
the field that demand outstanding achievement of their
- published material about the
individual in professional or major trade publications
or other major media;
- evidence that the individual
has judged the work of others, either individually
or on a panel;
- evidence of the individual's
original scientific, scholarly, artistic, athletic,
or business-related contributions of major significance
to the field;
- evidence of the individual's
authorship of scholarly articles in professional or
major trade publications or other major media;
- evidence that the individual's
work has been displayed at artistic exhibitions or
- performance of a leading or critical
role in distinguished organizations;
- evidence that the individual
commands a high salary or other significantly high
remuneration in relation to others in the field;
- evidence of commercial successes
in the performing arts.
The worker may submit "other
comparable evidence" if the criteria above do not
EB-1-2: Outstanding professors
and researchers are recognized internationally
for their outstanding academic achievements in a particular
field. In addition, an outstanding professor or researcher
must have at least three years of experience in teaching
or research in that academic area, and enter the U.S.
in a tenure or tenure-track teaching or comparable research
position at a university or other institution of higher
education. If the employer is a private company, the
department, division, or institute of the private employer
must employ at least three persons full-time in research
activities and have achieved documented accomplishments
in an academic field.
Evidence that the professor or researcher
is recognized as outstanding in the academic field must
include documentation of at least two of the following
- receipt of major prizes or awards
for outstanding achievement;
- membership in associations that
require their members to demonstrate outstanding achievements;
- published material in professional
publications written by others about the individual's
work in the academic field;
- participation, either on a panel
or individually, as a judge of the work of others
in the same or allied academic field;
- original scientific or scholarly
research contributions in the field;
- authorship of scholarly books
or articles (in scholarly journals with international
circulation) in the field.
EB-1-3: Some executives and managers
of foreign companies who are transferred to the U.S.
may qualify for this category. A multinational manager
or executive is eligible if he or she has been employed
outside the U.S. for at least one of the three years
preceding the petition by a firm or corporation and
seeks to enter the U.S to continue service to that firm
or organization. The employment must have been outside
the U.S. in a managerial or executive capacity and with
the same employer, an affiliate, or a subsidiary of
The petitioner must be a U.S. employer,
doing business for at least one year, that is an affiliate,
a subsidiary, or the same employer as the firm, corporation
or other legal entity that employed the foreign national
No labor certification is needed
for EB-1 petitions.
While an EB-1-1 individual of extraordinary
ability may petition for himself or herself, the employer
must file the petition for an EB-1-2 outstanding professor
or researcher and an EB-1-3 multinational executive
EB-2 WORKER WITH ADVANCED
DEGREES OR EXCEPTIONAL ABILITY
The employment-based second preference category includes
members of the professions holding advanced degrees
or their equivalent and individuals who have exceptional
ability in the sciences, arts, or business.
National interest waivers.
Labor certification normally is required for individuals
seeking green cards in the EB-5 category. EB-2 workers
may apply to waive the labor certification requirement,
however, if such a waiver would be in the national interest.
To satisfy the requirements for a national interest
waiver, the petition must show that:
- the foreign national's work is
in an area of substantial intrinsic merit;
- the proposed benefit of the foreign
national's work is national in scope; and
- the foreign national will serve
the national interest to a substantially greater degree
than would an available U.S. worker having the same
Qualified foreign physicians also
may receive national interest waivers exempting them
from the labor certification process. The requirements
are discussed in greater detail below.
Contact your ABIL attorney for guidance
through the complex process of filing for a national
A green card petition for a foreign
professional holding an advanced degree may be
filed when the job requires an advanced degree (beyond
the baccalaureate) and the worker possesses such a degree
or the equivalent. The petition must include documentation,
such as an official academic record showing that the
worker has a U.S. advanced degree or a foreign equivalent
degree, or showing that the alien has a U.S. baccalaureate
degree or a foreign equivalent degree and letters from
current or former employers showing that the worker
has at least five years of progressive post-baccalaureate
experience in the specialty.
Qualified foreign physicians
who will be practicing medicine in a medically underserved
area may also qualify for this classification. As noted,
a national interest waiver exempts such a physician
from the labor certification process. Evidence to support
a national interest waiver for qualified foreign physicians
- a full-time employment contract
or, if the physician will establish his or her own
practice, a sworn statement committing to the full-time
practice of clinical medicine and the steps being
taken to establish the practice;
- documentation that the medical
services will be provided in a designated medically
underserved area or a facility under the jurisdiction
of the Veterans Administration;
- a letter from a federal agency
or a state department of public health attesting that
the physician's work will be in the public interest;
- documentation that the physician
meets admissibility requirements; and
- documentation of any USCIS-issued
waivers of requirements if the physician has been
a J-1 nonimmigrant receiving medical training within
There are additional requirements.
Contact your ABIL representative for guidance on the
process of filing for a national interest waiver.
To be classified as having exceptional
ability in the sciences, arts, or business, the
individual must provide documentation of three of the
following six criteria:
- an official academic record showing
the worker has a degree, diploma, certificate or similar
award from a college, university, school or other
institution of learning relating to the area of exceptional
- letters documenting at least
10 years of full-time experience in the occupation
- a license to practice the profession
or certification for a particular profession or occupation;
- evidence that the worker has
commanded a salary or other remuneration for services
that demonstrates exceptional ability;
- membership in professional associations;
- recognition for achievements
and significant contributions to the industry or field
by peers, government entities, professional or business
If the above standards do not apply
to the petitioner's occupation, other comparable evidence
of eligibility may also be acceptable.
SKILLED WORKER, OTHER WORKER
The employment-based third preference category includes
professionals with a baccalaureate degree, individuals
with at least two years of experience as skilled workers,
and others with less than two years of experience who
can perform labor for which qualified workers are not
available in the U.S. This last group is known as "other
Although eligibility requirements
for the EB-3 classification are less stringent than
those for the EB-1 and EB-2 classifications, a long
backlog exists for immigrant visa numbers in the "other
workers" subcategory. All EB-3 petitions require
an approved labor certification.
Professionals must hold
a U.S. baccalaureate degree or foreign equivalent degree
that is normally required for the profession.
Skilled worker positions
require at least two years of experience or training.
The training requirement may be met through relevant
post-secondary education. The job requirements determine
whether a job is skilled or unskilled.
Other workers are in positions
that require less than two years of higher education,
training, or experience. Due to the long backlog, a
petitioner can expect to wait many years before being
granted a visa under this category.
EB-4 SPECIAL WORKER
The employment-based fourth preference category includes
those in a religious occupation or vocation. Such individuals,
for at least two years before applying for admission
to the U.S., must have been a member of a religious
denomination that has a nonprofit religious organization
in the U.S., and will be working in a religious vocation
or occupation at the request of the religious organization.
EB-5 IMMIGRANT INVESTORS
The employment-based fifth preference category is for
investors who invest a substantial amount of money in
a U.S. business and through that investment create or
save at least ten jobs for U.S. workers. The normal
amount required to invest is $1 million, although that
amount can be reduced to $500,000 if the investment
is made in a high unemployment or rural area. Of the
approximately 10,000 green cards available for this
preference each year, 3,000 are reserved for investors
who immigrate through a "regional center,"
which is an entity, organization, or agency that focuses
on a specific geographic area within the U.S.
To qualify for an EB-5 green card,
investors must invest the required amount of capital
in a new commercial enterprise that they have established.
A new commercial enterprise can be:
- an original business;
- an existing business that is
restructured or reorganized; or
- an existing business that is expanded
by 140 percent.
An EB-5 petition must be filed with
supporting documentation demonstrating that the individual:
- has established a new commercial
- has invested the required amount
- has proven the investment comes
from a lawful source of funds,
- either has already created the
required number of jobs or has a good business plan
to create the jobs within two years,
- is actively participating in
the business and, where applicable,
- is creating employment within
a high unemployment or rural area.
Once the petition is approved, immigrant
investors become conditional permanent residents. After
two years, they must file a petition proving that they
maintained their investment for two years. They then
can become regular permanent residents.
Contact your ABIL attorney for details
on how to apply for this visa category.