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Employment Based Immigration

Becoming a permanent resident through an offer of permanent employment in the United States is the most common alternative to a family-based application where it is not possible. The employment based (EB) process involves three steps.
First, most positions require the applicant first obtain labor certification from the department of labor. Labor certification is now facilitated by filing with the U.S. Department of Labor using its new PERM system. A brief explanation of PERM follows.
The Department of Labor has issued new regulations, known as PERM, which will govern all labor certification cases filed after March 28, 2005. PERM offers a much faster route to accomplishing labor certification. The highlights of it include the following:

  • Employers must recruit prospectively, before filing the application. Necessary recruitment will include two Sunday print advertisements, and three additional recruitment steps from a list of ten possible media. These options include:
    • Job fairs
    • Employer’s web site
    • Job search website other than the employer’s (if print ad includes web, that inclusion will count under this option as an additional mode)
    • Campus recruiting
    • Trade or professional organizations
    • Private employment firms
    • Employee referral program with incentives
    • Campus placement offices
    • Local and ethnic newspapers
    • Radio and television advertising

 

  • All recruiting must be done between six months prior to the filing date, and no more recently than 30 days preceding the filing date;
  • The labor certification application is submitted electronically (for fastest results) over the web. No supporting materials are submitted. All recruiting efforts and results are maintained by the employer for a period of 5 years in the event the DOL conducts an audit. The electronically submitted case will be approved electronically within a matter of weeks, after which the worker will be eligible to file for adjustment of status (the employer files Form I-140 at this point as well);

Current, the government allows the employer’s form I-140 to be filed concurrently with the foreign nationals I-485 adjustment of status application <link to it> so long as the visa category in which the petition falls is current. This has recently become a critical point, because the EB-3 category has retrogressed about five years. An overview of the categories, and who falls within each, will help you understand which EB category your filing might fall within.
There are five categories for granting permanent residence to foreign nationals based on employment skills. If you are an employer and are unsure which employment category applies to the foreign national you wish to sponsor, or if you are a foreign national and want more information on which category matches your particular situation, click one of the employment categories:


The EB-1 Category:

  • Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
  • Foreign national that are outstanding professors or researchers
  • Foreign nationals that are managers and executives subject to international transfer to the United States (L-1A visa holders)

EB-2 Professionals with advanced degrees or persons with exceptional ability

  • Foreign nationals of exceptional ability in the sciences, arts or business
  • Foreign nationals that are advanced degree professionals
  • Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.

EB-3 Skilled or professional worker

  • Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category)
  • Foreign national skilled workers (minimum two years training and experience)
  • Foreign national unskilled workers


EB-4 Special Immigrants

  • Foreign national religious workers
  • Employees and former employees of the U.S. Government abroad


EB-5 Immigrant Investors
Writing the labor certification in a way that elevates the position to the highest possible category, within the confines of the facts, will maximize your chances of procuring permanent residency. This area of the law is extremely complicated, and you should be sure to have an attorney you trust and can communicate with readily.