Oftentimes, employers are blown away by the skill level of their foreign national employees. It is common for this group to work hard, complete their projects on time and quickly become invaluable members of the team. Naturally, managers and business owners soon begin to think about how nice it would be to have these superstars in the organization permanently.
This post provides information for such employers who are interested in green card sponsorship.
The Employment Based Green Card Categories
The steps that an employer has to take before sponsoring a foreign national employee will vary depending on the employment based green card category that the employee falls under.
The categories include the EB-1 which is reserved for multinational managers and executives as well as outstanding researchers and individuals of extraordinary ability. The EB-2 is for advanced degree professionals and individuals of exceptional ability. And the EB-3 is reserved for professionals, skilled workers and unskilled workers.
THE GREEN CARD CATEGORIES THAT DO NOT REQUIRE PERM RECRUITMENT
The EB-1A is reserved for an elite group of achievers. There are not many people who have risen to the top of their organization or have such immense talent that they are considered by the US government to be extraordinary. However, if your employee does fall within this esteemed group, then they will be rewarded with a relatively smooth ride to green card status.
In order for an EB-1A petition to be successful, you have to satisfy the adjudicator that your employee is “one of that small percentage that has risen to the very top of the field.” The petition must demonstrate that the employee has sustained national or international acclaim and that the foreign national’s presence and work will substantially benefit the United States. If the employee has achieved acclaim in a certain category, they must be planning on continuing in that field of endeavor in the United States.
So, how do you demonstrate that your employee is worthy of an EB-1A petition? The documentation has to clearly demonstrate sustained acclaim AND either a one time achievement that is considered a major internationally or nationally recognized prize or award OR show at least three categories of evidence from a list of eleven that establish your employee as a person of extraordinary ability. The categories include:
Lesser national or international awards
Merit based membership in a prestigious organization
Published material about the foreign national in major media or in a major trade publication
Evidence showing that the foreign national served as a judge of their peers
Contributions of major significance to the field
Artistic showcases or exhibitions
Leading or major role in distinguished organization
High remuneration compared to others in the field
Commercial success in the performing arts
Other evidence that demonstrates the foreign nationals extraordinary ability
The Eb1c is a green card category that is awarded to multinational executives and managers.
In order to qualify for the Eb1c, the foreign national employee must have worked with the sponsoring company(or a related entity) for at least one year during the past three years. Also, the US company must have been doing business in the US for at least one year at the time that the petition is filed. Finally, the foreign national employee must meet the definition of a manager or executive.
The Eb2 National Interest Waiver
The Eb2 National Interest Waiver is available to some foreign national employees who hold an advanced degree or possess exceptional ability.
In order for the waiver to succeed, the foreign national employee must show that their field of endeavor has substantial merit and national importance. Second, the applicant must be well positioned to advance their particular field of endeavor. Finally, the foreign national must prove that the US benefits from waiving the recruitment process that is typically required.
The PERM Labor Certification Process
If an employee doesn’t qualify for an EB-1 or an EB-2 National Interest Waiver, then the employer petitioner will have to test the labor market and prove to the US Department of Labor(DOL) that there are no qualified US workers who meet the minimum requirements to perform the job duties. The following labor certification filing steps are somewhat dated and not practical for many modern businesses. Nonetheless, they have to be completed before an employer can file an Immigrant Worker Petition with USCIS:
-Obtain a prevailing wage determination from the DOL
-Place a job order with a state workforce agency for 30 days followed by a 30 day quiet period before the PERM application can be filed
-Place two Sunday newspaper ads(some exceptions apply)
-For professional positions, the employer must choose 3 of 10 possible recruitment steps(ie. job website, radio ad, job fair)
-Post a notice of the job at the workplace for 10 consecutive business days
-Submit Form ETA-9089
How long will it take?
If all goes well and your file is not selected for an audit, you can usually expect a decision within 3-5 months. For audited cases, the timeline expands to 8-10 months. If DOL issues the labor certification, then you can move on to the next phase in the process which is filing the I-140 Employment Based Immigrant Worker Petition.
If the employee is already in the United States in valid status and a green card(based on the preference category of the employee) is available, an I-485 adjustment of status can be filed contemporaneously with the I-140. If there is a backlog, then the beneficiary would have to wait for a green card to become available before having the ability to adjust to lawful permanent resident status.
If the employee is outside of the United States, they can apply for an immigrant visa once their green card category is current.
Additional Requirements for the Visa Petition
In addition to the form I-140, the employer is required to provide a letter verifying the foreign worker’s employment. The employer will also submit documentation establishing the company’s ability to pay the proffered wage.
At the same time, the employee will gather documentation to send to USCIS verifying that he or she meets all of the minimum requirements listed in the Labor Certification.
This post provides a brief overview of a nuanced and complicated process. Although the employment based green card process is tedious, this should not dissuade you from using it in order to employ world class talent.
A good immigration lawyer will make your life easier by simplifying your tasks and reducing your stress so that you can focus on other aspects of your business.