Chapter 9 Getting a Green Card Through Employment

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 9 Getting a Green Card Through Employment

A. Are You Eligible for a Green Card Through Employment?

1. Which of the Five Employment Preference Categories Fits You?..........201
2. Do You Have a Job Offer From a U.S. Employer?
3. Do You Have the Correct Background?
4. Is Your Employer Unable to Find Qualified U.S. Workers for the Job?
5. Schedule A Jobs: No Formal Labor Certification Required

B. Quick View of the Application Process

C. Step One: The Prevailing Wage Determination

D. Step Two: Employer Advertising and Recruitment

1. Recruiting Requirements for Nonprofessional Jobs
2. Recruiting Requirements for Professional Jobs
3. Handling Job Applications

E. Step Three: Your Employer Seeks Labor Certification

F. Step Four: Your Employer Files the I-140 Petition

1. Submitting the I-140 Petition
2. Awaiting USCIS Approval of the I-140 Petition

G. Step Five: You Might Have to Wait for an Available "Visa Number" ...228

H. Step Six: You Submit the Green Card Application

1. What Happens When Adjusting Status in the U.S
2. Paperwork to Prepare for Adjustment of Status Application
3. Your Adjustment of Status Interview
4. What Happens If You Chose Consular Processing
5. NVC Role in Consular Processing
6. Your Consular Interview

I. Step Seven: Immigrant Visa Holders Enter the U.S

Every year, 140,000 green cards are made available to people whose labor or work skills are needed to fill gaps or needs in the U.S. workforce. Before you can even think about getting an employment-based green card, however, two lucky things need to happen:

• You need to receive a job offer from a U.S. employer (unless you have exceptional abilities or your work is in the national interest).
• The employer must (with a few exceptions) be willing to sponsor you for a green card—including a long process known as labor certification, which involves advertising and interviewing other people for the job you've been offered, and ultimately rejecting all of them for good reasons.

Many people would love to come to the U.S. in order to look for a job and stay permanently, but realistically, if you're from China or India, it's going to be difficult. Far more workers from those countries are looking for green cards than the number of green cards available, so the wait for them can be years long. Not many employers are willing to wait this long to hire someone. To get around that potential problem, see Chapter 16 on the H-1B visa as one option to work in the U.S. while awaiting the green card.

SEE AN EXPERT

Do you need a lawyer? Once you have successfully found a job, your employer will normally hire and pay for the services of a lawyer to help prepare and submit the necessary application materials. In fact, Department of Labor (DOL) rules require the employer to pay all attorneys' fees and other costs associated with a part of the process called "labor certification."

The DOL has even asked employees to sign an affidavit swearing under penalty of perjury that their employer did not require them to pay any costs relating to their labor certification.

Many large companies have experienced staff who will take care of immigration matters for highly desirable employees. However, it is often the employee who is most interested in having the green card issued, and to some U.S. employers, the red tape of hiring a foreign employee can be an unfamiliar nuisance. If your prospective employer doesn't hire a lawyer, it's worth paying for one on your own. The lawyer's help is particularly important, because the government rules concerning the application process keep changing and are very confusing.

A. Are You Eligible for a Green Card Through Employment?

In order to qualify for a green card through employment:

• You must have an offer of full-time, permanent, U.S.-based work from an employer that is also permanently located in the United States. (See 20 C.F.R. § 656.3 for a full discussion of what types of employers qualify—for example, neither visiting diplomats nor foreign media companies can sponsor you for a green card.)
• You must have the correct background (education and work experience) for the job you've been offered.
• There must be no qualified U.S. worker (U.S. citizen or national, green card holder, asylee, or refugee) willing or able to take the job—except in categories of green cards where labor certification is not required.

Key Features of an Employment-Based Green Card

Here are some of the advantages and limitations of an employment-based green card:

• You must begin by working full-time for the sponsoring company when the green card is approved. You may then switch jobs or choose not to work at all, so long as your original intention wasn't to take advantage of your employer and leave as soon as you could.
• Your spouse and your unmarried children under the age of 21 may also be eligible for green cards as accompanying relatives.
• The job through which you get your green card must be for full-time work and not self-employment (with some exceptions, depending on which category of work you apply under).
• As with all green cards, yours can be taken away if you misuse it—for example, you live outside the U.S. for too long, commit crimes, or even fail to advise the immigration authorities of your change of address. However, if you successfully keep your green card for five years, you can apply for U.S. citizenship.

1. Which of the Five Employment Preference Categories Fits You?

Green cards through employment are divided into five preference categories. In each category, only a certain number are given out each year. Often, more people apply in a year than there are green cards available. When that happens, the people who applied latest must wait to receive their green cards as they become available.

The five employment preference categories are:

• Employment first preference (EB-1). Priority workers.
• Employment second preference (EB-2). Workers with advanced degrees or exceptional ability.
• Employment third preference (EB-3). Professionals, skilled workers, or unskilled workers.
• Employment fourth preference (EB-4). Religious workers and various miscellaneous categories of workers and other individuals; also called special immigrants.
• Employment fifth preference (EB-5). Individual investors willing to invest $1,800,000 in a U.S. business (or $900,000 in a business in a rural or economically depressed area).

a. Employment First Preference (EB-1) Category

First preference, or "priority" workers, are divided into three subcategories:

• workers of extraordinary ability
• outstanding university professors or researchers, and
• transferring executives or managers of multinational companies.

Applying as a priority worker is easier than applying in most of the other employment categories, because your employer doesn't need to start out by seeking labor certification on your behalf. In fact, in the subcategory for workers of extraordinary ability, you do not even need a job offer. (People applying as professors or researchers, however, do need job offers. And transferring executives or managers must, obviously, already be employed by the company that's transferring them.)

i. EB-1: Workers of Extraordinary Ability Subcategory

You may qualify for a green card as a priority worker if you have extraordinary ability in the sciences, arts, education, business, or athletics. Your achievements must have been publicly recognized, and resulted in a period of sustained national or international acclaim. In general, if you can show that you are a widely acknowledged leader in your field, then you will be able to show that you have gained sustained acclaim.

You do not need a specific job offer in this subcategory so long as you will continue working in your field of expertise once you arrive in the United States. If, however, you have been offered a job, your employer can help with your application by filing the initial petition for you. USCIS tends to be more willing to trust, and therefore approve, "extraordinary ability" petitions submitted by an employer-sponsor. That is because USCIS can more readily imagine that you will in fact be performing these feats involving extraordinary ability if a company wants to hire you for this purpose. So if you have a choice between a "self-petition" and having an employer sign off on the petition, consider the benefits of having an employer sponsor you.

ii. EB-1: Outstanding Professors and Researchers Subcategory

You may qualify for a green card as a priority worker under the outstanding professors and researchers subcategory if you have an international reputation for being outstanding in a particular academic field. You need three years' minimum of either teaching or research experience in that field. You must also be entering the U.S. to accept a specific tenured or tenure track teaching or research position at a university or institution of higher learning. Unlike the "extraordinary ability" category described above, you will need a specific job offer from a qualified employer in this subcategory in order to qualify.

Alternatively, you may accept a job conducting research in industry or with a research organization. The U.S. company or institution employing you should have a history of making significant achievements in research and must employ at least three other full-time research workers. Research positions must not be temporary, but rather be expected to last for an unlimited or indefinite duration.

iii. EB-1: Multinational Executives and Managers Subcategory

You may qualify for a green card as a priority worker under the multinational executives and managers subcategory if you have been employed as an executive or manager by a qualified company outside the U.S. for at least one out of the past three years. Or, if you're already in the U.S. on a temporary visa, for one of the three years before you arrived here. You must now be going to take a managerial or executive position with a U.S...