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There are five categories of permanent residence (PR) through employment. These are called “preference categories” and are:
1. EB-1 (First Preference)
(A) People of Extraordinary Ability in science, art, education, business or athletics as demonstrated by substantial acclaim, and whose entry will benefit the US in the future;
(B) Outstanding Professors and Researchers – requires international recognition, 3 years of experience, and extensive documentation; and
(C) Multinational Executives/Managers, who have worked as a manager/executive for a related company outside the USA for one complete year, and will be a manager/executive in the US.
2. EB-2 (Second Preference)
(A) Foreign nationals with an advanced degree or a bachelor’s degree and 5 years experience or equivalent, and whose position in the US requires this advanced education*; and
(B) Foreign nationals of exceptional ability working in science, art, a profession, or business whose work is in the “National Interest” of the US.
3. EB-3 (Third Preference)*
(A) Skilled workers. – Foreign nationals who are performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States;
(B) Professionals: Foreign nationals with a bachelor’s degree or equivalent, and whose positions require at least a bachelor’s degree and less than 5 years experience; and
(C) Other workers: foreign nationals performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
4. EB-4 (Fourth Preference)
Religious workers.
Employees and former employees of the U.S. Government abroad
5. EB-5 (Fifth Preference)
Investors. This requires an investment of $1 million (or $500,000 in a “targeted employment area”). The business must also create 10 new jobs.
* These categories require labor certification explained below.
More details are available on the USCIS website here.
PERMANENT RESIDENCE APPLICATION PROCEDURE
1. Labor Certification
1. If the preference category requires a test of the US job market, the first step involves getting a labor certification (called PERM) approved by the Department of Labor (DOL). The employer needs to conduct a prescribed number of recruitment methods, to see whether there is an available, qualified, US worker interested in the position. Because of the uncertainties of the job market, this is the most unpredictable step in the immigration process. Elaine Martin works closely with employers to analyze the position, requirements, and advertising, and to answer questions regarding the process. However, no immigration law firm can review resumes or screen applicants.
2. I-140 Immigrant Petition
(i) With labor certification
Once the labor certification is approved, the employer files an immigrant visa preference petition with the US Citizenship and Immigration Service (CIS, formerly INS). This petition needs to prove the following to USCIS:
(a) that the DOL has approved a PERM on behalf of this foreign national;
(b) that the foreign national has the education and experience required as listed on the labor cert. The employee will need to provide educational documents and copies of experience letters. Martin Immigration Law will discuss these with the employee at Step 1.
(c) that the employer can afford to pay the salary listed on the PERM.
(ii) Without labor certification
If the employee is in a category that does not require labor certification, the process starts with the employer filing an I-140. In that situation, the I-140 needs to include extensive detail about the employee’s qualifications for the classification requested. For example, if the employer is asking that the employee be classified as an outstanding researcher, we must include evidence of the foreign national’s publications, presentations, research experience, education, recommendation letters, etc.
3. Adjustment of Status or Consular Processing
The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, her dependent family members also file for permanent residence at this stage. This final step involves the employee and her family showing to USCIS or the consulate that there is no reason why they are not permitted to get permanent residence, i.e. there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.
(i) Adjustment of Status
If the foreign national’s priority date is current*, s/he can file the Adjustment of Status (AOS) with the I-140, or while the I-140 is pending. If the priority date is not current, the foreign national must wait until it is current before she can file the AOS.
(ii) Consular Processing
If the foreign national prefers, she can complete the permanent residence at her home consulate. If she chooses this option, she cannot do the 3rd step until and I-140 is approved AND the priority date is current. Consular processing used to be faster than AOS sometimes, but with concurrent filing of AOS now available, consular processing is less popular. It is also more cumbersome because of the travel requirements and the need for more documents than with AOS.
* Please see the FAQs on this website for an explanation of these terms.
