A permanent resident or “green card holder” is someone who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a “green card.” Approximately 140,000 immigrant visas are available each fiscal year for foreign workers and their spouses and children who seek to immigrate to the United States based on their job skills. There are five employment-based immigrant visa preferences (categories).
EB-1 – First Preference
This preference is reserved for persons of extraordinary ability in science, art, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. No labor certification is required and in some cases a person can file a self-petition without the sponsorship of a United States employer.
EB-2 – Second Preference
This preference is reserved for persons who are members of professions holding advanced degrees or for persons with exceptional ability in art, science, or business. A labor certification is required, unless the applicant can obtain a national interest waiver. A person may qualify for a National Interest Waiver if the foreign national demonstrates that: (1) the proposed endeavor has both substantial merit and national importance, (2) the person is well position to advance the proposed endeavor, and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
EB-3 – Third Preference
This preference is reserved for professionals, skilled workers, and other workers. A labor certification is required.
EB-4 – Fourth Preference
This preference is reserved for “special immigrants,” a designation that includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens. No labor certification is required.
EB-5 – Fifth Preference
This preference is reserved for business investors who invest at least $1 million (or $500,000 if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers. No labor certification is required.
What is labor certification?
The Program Electronic Record Management (“PERM”) Labor Certification process requires the employer to file a labor certification application with the U.S. Department of Labor (“DOL”) seeking a finding by the DOL that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the job that is being offered to a non-U.S. worker.
The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market to check if there are willing, able, and qualified U.S. citizens or Permanent Resident workers for the offered position before filing the application with the DOL. First, employers must obtain a valid prevailing wage determination from the DOL. Second, the employer must place no less than 2 print advertisements in the largest general circulation newspaper in the area of intended employment. Further, a job order must be placed with the State Workforce Agency in the area of intended employment for no less than 30 days. Finally, employers must place a Notice of Filing in a conspicuous location at the job site location for a period of 10 consecutive business days. If the employer has any in-house media—electronic or otherwise (e.g. intranet, newsletter)—that is normally used for recruitment purposes by the employer, the Notice of Filing must be posted via this method as well.
If the position requires a bachelor’s degree at minimum, then additional recruitment steps are required. For example, in such a case an employer may also have to advertise and actively recruit for the position at a job fair, on the company website, and in a trade or professional journal.
Employers must review all job candidates’ qualifications to determine whether there are any willing, able, and qualified U.S. workers to fill the position. If the employer is unable to locate a suitable candidate, the employer may file a PERM Labor Certification application. The DOL may audit a PERM Labor Certification application. If the PERM Labor Certification application is certified (approved) by the DOL, the employer may file a petition for permanent residency on behalf of the employee.
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