Employers in the United States cannot always find the skilled workers they need among jobseekers. Because of this, U.S. immigration law allows employers to sponsor certain employees with specific skills and talents to become lawful permanent residents. However, bringing the people that U.S. businesses need requires careful strategy and planning.

To become a permanent resident based on a permanent employment opportunity in the United States, or if an employer wants to sponsor a person for lawful permanent residency based on permanent employment in the United States, there is a multi-step process.

1. Foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of USCIS’ paths to lawful permanent residency. This is a complex analysis that should be handled with care. Please contact Kolko & Casey, P.C. to set up a consultation to determine whether the foreign national is eligible for employment-based lawful permanent residence.
2. Most employment categories require that the U.S. employer complete a Labor Certification request with the U.S. Department of Labor to show that there are not enough U.S. workers who are able, willing, qualified, and available in the geographic area where the immigrant is to be employed and that no American workers are displaced by foreign workers. The labor certification process is commonly known as PERM. There are certain categories that waive the PERM Labor Certification requirement such as National Interest Waiver (NIW), Extraordinary Ability, Outstanding Professor of Researcher and Multinational Manager and Executive.
3. USCIS must approve an immigrant visa petition for the person wishing to immigrate to the United States.  Some applications require a permanent position and others do not.  Some require the employer to petition for permanent resident status other categories allow the individual to self-petition.
4. The U.S. State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant.
5. If the applicant is already in the United States, he or she must apply for adjustment of status to become a lawful permanent resident after a visa number becomes available.  If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office abroad.

Preference Categories

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into four (4) preference categories. They may require a Labor Certification from the U.S. Department of Labor (DOL), and the filing of a petition with United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).

Employment First Preference (EB1)

Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I-140, Immigrant Petition for Foreign Worker, filed with USCIS.

Within this preference there are three sub-groups:

• Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. This category is reserved for those individuals who have risen to the very top of their field. Applicants in the extraordinary ability category are not required to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability.
• Outstanding professors and researchers with at least three years of experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.
• Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.

Employment Second Preference (EB2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas.

All Second Preference applicants must have a labor certification approved by the Department of Labor, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.

A job offer is required and the U.S. employer must file a petition on behalf of the applicant.
Certain foreign nationals may qualify for a National Interest Waiver (NIW), in order to obtain an exemption from the job offer and labor certification if the exemption would be in the United States’ national interest. If the NIW is approved, the I-140 petition will be processed without a job offer or labor certification.

There are two subgroups within this category:

• Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
• Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

Employment Third Preference (EB3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas.

All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or “Schedule A” designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.

There are two subgroups within this category:

• Skilled workers are persons capable of performing a job requiring at least two years’ training or experience; and
• Professionals with a bachelor’s degree.

Special Immigrants (EB4)

Over the years, several laws have been passed covering special categories of immigrants who qualify for Lawful Permanent Residence, these include, but are not limited to, Religious Workers, Former Employees of the Panama Canal Zone, Former Employees of the U.S. Government and U.S. Armed Forces, Retired Employees of International Organizations, Retired Civilians on NATO-6 visa, Employees of the International Broadcasting Bureau, Special Agricultural Workers and Foreign Medical Graduates.

If you believe that you or your family member falls into one of these Special Immigrant categories, please contact Kolko & Casey, P.C. for a consultation.