Employment-Based Immigrant Classifications
(Green Card Processing)
The U.S. government limits the number of foreign nationals who can obtain Permanent Resident status (also known as a Green Card) in the United States and has established the U.S. Immigrant Visa Quota System. Under the current U.S. immigration laws, a foreign national must be approved for an employment-based immigrant visa classification in the U.S. Immigrant Visa Quota System before being eligible to apply for a Permanent Resident Card (or status as a lawful permanent resident of the United States).
U.S. Immigrant Visa Quota System: The U.S. Immigrant Visa Quota System contains several employment-based immigrant classifications. The first preference classification is for Priority Workers. The second preference classification is earmarked for Advanced Degree Professionals or Aliens of Exceptional Ability. The third preference employment-based classification includes Skilled Workers, Professionals, and Other Workers. Religious Workers are placed in the fourth preference classification. The fifth preference classification is reserved for Alien Entrepreneurs or Employment Creation Aliens.
Qualifying for an Employment-Based Immigrant Classification: To qualify for a specific employment-based immigrant classification, the nature of the employment in the United States as well as the education, experience and skills of the foreign national are considered. The process by which to obtain the particular employment-based immigrant classification can involve the U.S. Department of Labor ("DOL") and a process called Alien Employment Certification and/or U.S. Citizenship & Immigration Services ("USCIS").
Alien Labor Certification/Program Electronic Review Management (PERM):Through this process, the employer must establish it is not jeopardizing the U.S. workforce by hiring a foreign national by attesting to the Department of Labor that there exist no U.S. workers "able, willing, qualified or available" for the position and that hiring a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employer will attest that it has actively recruited for the position following specific recruitment procedures which involve participating in the Job Bank program for the State of employment, advertising for the position in two Sunday-issues of the local newspaper of general circulation, posting for the position internally and a combination of other recruitment activities. Via the alien labor certification process, the employer is actually recruiting for U.S. workers to work in the position (or a future position) that it has in essence already filled with the foreign national. These, albeit extreme, measures were designed out of fairness to support the local (U.S.) workforce.
Obtaining an Immigrant Classification: In some instances the Alien Employment Certification process must be completed first before the employer can petition for an employment-based immigrant classification for the foreign national. This employment-based immigrant classification (or preference classification) is obtained by filing an employer immigrant petition with USCIS along with the required supporting documentation about the job offered and the foreign national's qualifications to perform the job. Additionally, the employer must provide USCIS with financial evidence of its ability to pay the proffered wage. This financial evidence can include the corporate annual report, federal tax returns or audited financial statements. U.S. employers employing 100 or more workers may submit a statement by the organization's financial officer establishing the employer's ability to pay the proffered wage. In some instances the employer immigrant petition to obtain the immigrant classification can be filed simultaneously with the application for the Permanent Resident Card as discussed below.
The Application for the Permanent Resident Card: After the employment-based immigrant classification is obtained (after USCIS approves the employer immigrant petition) and when an immigrant visa is available in the U.S. Immigrant Visa Quota System, the foreign national can apply for the Permanent Resident Card (Green Card). If eligible under the U.S. immigration laws, the Permanent Resident Card application processing can be completed while the foreign national is present in the United States. This process is called "adjustment of status." If the foreign national is outside the United States or is not eligible for adjustment of status, Permanent Resident Card processing can be completed abroad at a U.S. Consular Post.
Family Members: The spouse and child(ren) (under age 21) may simultaneously apply for a Permanent Resident Card with the foreign national, provided the family relationship was in existence before the application is approved.
The employment-based Green Card processing is quite lengthy due to the work involved by the various government agencies and the number of backlogged cases. Advance planning is essential.
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