EMPLOYMENT-BASED SPONSORSHIP
FOR IMMIGRANT VISAS
In many cases, you may be sponsored for a green card through a U.S. employer. Unless you qualify for an exemption, most employers sponsor an employee for green card through the labor certification process. This had always been a lengthy and complicated process that hopefully resulted in a determination by the Department of Labor ("DOL") that there is a shortage of qualified American workers willing and able to fill the job being offered in the area of intended employment. That determination is based on a test of the job market through recruitment of qualified U.S. workers.
In 2005, the DOL completely changed the labor certification procedure, initiating a new process called PERM. PERM involves major changes in the format and content of the Labor Certification Application and the way the applications are processed. Under the old labor certification process it could take 3 or 4 years for the DOL to review and certify a labor certification application in certain states, i.e., New York. Under PERM, the DOL estimates it should take no longer than 90 days from the date of filing to make this determination.
Once the labor certification is approved, however, the applicant must still have an I-140 petition approved in their behalf by USCIS and then wait for a visa number to become available to them before they can move on to the next step of government processing. The length of this waiting period will be affected by the preference category under which they qualify and by their country of birth.
For those who are not exempt from the labor certification requirement, there are three Employment-Based (EB) preference categories:
| EB2 | Positions that require at least a Master’s Degree and applicants who possess the required Master’s Degree or its equivalent based on a combination of education and work experience |
| EB3 | Positions that requires at least a Bachelor’s Degree or two years training/experience and for applicants who possess the required Bachelor’s Degree or the two years training or two years experience |
| OTHER WORKERS | Positions that do not require a degree and less than two years training or two years experience. The "OW" are part of the EB3 but have a lesser number of visas allocated under the annual immigration quota |
As mentioned above, one must also consult the State Department’s Visa Bulletin to determine if a visa is available to them. Visa availability means the person can complete their immigration at a consulate overseas or if they are filing for adjustment of status through the USCIS in the U.S. For those adjusting, there must also be a visa number available to them at the time the USCIS completes the processing of their application.
In certain situations there might be a visa number immediately available to an applicant at the time the PERM labor certification is approved. This will happen most often if someone qualified as an EB2 and is not from one of the countries where the quota is oversubscribed (e.g., India and China). Visa number availability might also occur when someone filed a traditional labor certification several years ago under the old system and their priority date under EB2 or EB3 is reached. In this situation, the I-140 petition can be filed concurrently with the I-485 adjustment of status application.
The law provides that some applicants for permanent residence may bypass this labor certification requirement and may commence their application by directly petitioning USCIS without an approved labor certification. Such exceptions include applying as an investor, as a person of extraordinary ability, as an outstanding professor or researcher, as a multinational executive or manager, as a religious worker, or as a person of exceptional ability or an advanced-degree holder if this would be in the national interest of the U.S.
For assistance in completing the immigrant visa petition and application to adjust your status, please contact the NY immigration attorneys at Garganigo, Goldsmith & Weiss and we will be happy to assist you.
