Employment-Based Visa and Labor Certification (PERM)

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Description

Section 203(b) of the Immigration & Nationality Act provides for several methods through which an individual may obtain legal permanent residency in the U.S. through qualified employment. Having qualified employment means you fall into one of the following categories:

  • Aliens with extraordinary ability; outstanding professors and researchers; or certain Multinational Executives and Managers. EB-1
  • Aliens who are members of the professions holding advanced degrees who have an approved Labor Certification; aliens of exceptional ability; aliens who are qualified for a National Interest Waiver; or aliens who are physicians who will practice in an underserved area. EB-2
  • Aliens who are professional, skilled workers or unskilled workers who have an approved Labor Certification. EB-3
  • Aliens who are Religious workers, Border commuters, Retired employees of international organizations, employees and former employees of the U.S. government abroad, and Iraqi & Afghani Translators. EB-4
  • Aliens who are investing the minimum amount established by law, in a company which will benefit the United States economy and create full-time employment for not fewer than 10 United States workers. EB-5

Labor Certification Applications

Applications for U.S. residency in most categories must start with a Labor Certification (process is called PERM).  It is issued by the Department of labor (DOL).  By approving a labor certification (LC) request, the Employment and Training Administration (ETA) of the DOL certifies that:

  • There are no U.S. workers who are able, willing, qualified and available to accept the job;
  • At the prevailing wage for that position;
  • In the geographic location of intended employment; and
  • Hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employment-based Visa

There are several categories for this visa, which is generally processed in the following order of preference, as established by the regulations:

EB-1 – The First Preference includes:

  • Aliens of Extraordinary Ability in the sciences, arts, education, business, or athletics; such as outstanding researchers, professors, artists, executives, athletes, and multinational managers and executives.

Candidates in the first preference can petition for permanent residency without a sponsor and without going through the lengthy labor certification process.

EB-2 – The Second Preference includes:

  • Aliens holding advanced degrees or with exceptional training and ability.
  • Qualified alien physicians who will practice medicine in underserved areas of the U.S.

Candidates in the second preference normally need to have a U.S. employer as the sponsor and must go through the lengthy labor certification process.

Aliens who are qualified to file an application pursuant to a National Interest Waiver (NIW) do not have to process a Labor Certification. For a NIW, the alien must demonstrate that his/her residency is in the national interest of the United States.  If a national interest waiver is obtained, the requirements of job offer and LC are waived.

EB-3 – The Third Preference includes:

  • Professionals (with a minimum of a bachelor degree or its foreign equivalent)
  • Schedule “A” workers: Occupations for which the US Department of Labor has determined that there are no sufficient willing, qualified, able, and available American workers. If the occupation falls under this category, then the process of labor certification is considered pre-approved.
  • Skilled workers (workers with at least two years of training or experience performing skilled labor), and
  • Other workers” (all other workers that are not professional or skilled). These workers usually experience longer waiting periods in the residency quota lines.

Candidates in the third preference normally need to have a U.S. employer as the sponsor and must go through the labor certification process.

EB-4 – The Fourth Preference – Special immigrants & religious workers includes:

  • Religious workers
  • Border commuters
  • Retired employees of international organizations
  • Returning residents
  • Employees and former employees of the U.S. government abroad

NOTE: This category does not require a Labor Certification Application (PERM).

EB-5 – The Fifth Preference – Employment creation investors includes:

  • Foreigners investing in new companies, generating 10 or more jobs, and investing at least $500,000 in “targeted employment areas” (areas with unemployment rate of at least 150% of the national average).
  • Foreigners investing in new companies, generating 10 or more jobs, and investing at least $1,000,000 in any location.

There are only 10,000 visas per year for this preference category.  Details please see EB-5 Visa for foreign Investors.

Who Is Eligible

To be able to proceed with a residency petition through employment, you must have:

  1. an approved labor certification from the US Department of Labor or be filing through a section of the law that does not require it;
  2. an approved or pending I-140 Immigrant Petition for Alien Worker;
  3. have a visa immediately available; and
  4. be eligible for adjustment of status pursuant to Section 245 of the Immigration & Nationality Act.

As noted above, the initial stage for most individuals is the labor certification, a process known as PERM. While there are several other visa preferences discussed above that do not require an approved labor certification, those are the exceptions and not the norm. If an individual meets all of the criteria in one of the following categories, he or she will be able to file for a residency petition immediately upon the approval of the labor certification and an immigrant visa petition, if the “priority date” for the visa is “current”. However, if one does not fulfill all of the criteria in one of the categories set forth below, then the individual will be able to file an Immigrant Petition for Alien Worker, Form I-140, but will not be able to file a residency petition until a later date when all of the criteria are met for an adjustment of status, I-485.

Note: a “current priority date” means that a visa is available according to the Department of State’s Visa Bulletin.

Category I:

  • Must be living in the U.S. on or before December 18, 2000 and be the beneficiary (primary or derivative) of an immigrant visa petition filed on or before 04-30-01 (According to the former INA—Immigration and Nationality Act §245(i) law). Therefore it is advisable to initiate this procedure as soon as possible if you fulfill all the requirements.
  • Must have never left the U.S. without permission of the US Immigration Service.
  • Must have an offer of employment from a U.S. employer, who has agreed to sponsor the beneficiary for the residency.
  • Must receive a salary equal to or above the prevailing wage offered for such a position in the State in which the job will be performed.

Category II:

  • Must be lawfully present in the U.S. on a current nonimmigrant visa
  • Must not have violated conditions of nonimmigrant visa

Category III:

  • Must be residing outside the U.S.
  • Must not have been previously deported or removed from the U.S.
  • Must not be subject to an order of removal, exclusion, or deportation
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