Employers can utilize global talent by hiring foreign employees. The
employer acts as the sponsor or petitioner for the foreign employee, also known
as the applicant or beneficiary, who wants to live and work on a permanent
basis in the United States. Foreign nationals holding nonimmigrant temporary
work visas (H-1B visas) are eligible to obtain permanent residency (Green Card)
in the United States through their employment.
Eligibility for Foreign Nationals:
Depending upon the foreign national’s employment skills, there are five
categories for permanent residence eligibility. The employer and the employee
must determine the category that matches their particular situation. The following
is the list of the categories:
EB-1 Priority workers
Foreign nationals of extraordinary ability in the sciences, arts, education,
business or athletics;
Foreign nationals who are outstanding professors or researchers; and
Foreign nationals who are managers and executives subject to international
transfer to the United States.
EB-2 Professionals with advanced degrees or persons with exceptional
Foreign nationals of exceptional ability in the sciences, arts or business;
Foreign nationals who are advanced degree professionals; and
Qualified foreign physicians, who will practice medicine in an area of the
U.S. that is underserved (labor certification is exempted for the physicians).
EB-3 Skilled or professional workers
Foreign national professionals with a bachelor's degree, but who do not qualify
for a higher preference category;
Foreign national skilled workers with a minimum of two years training and experience;
Foreign national unskilled workers with fewer than two years of higher education,
including live-in domestic workers.
EB-4 Special Immigrants
Foreign national religious workers; and
Employees and former employees of the U.S. Government abroad.
EB-5 Immigrant Investors
Investors, either alone or with their spouse and unmarried children. A foreign
- Demonstrate that a "qualified investment" is being made in
a new commercial enterprise located within an approved regional center
in the U.S.; and
- Show, thorugh reasonable ways, that ten or more jobs will actually
be created in the U.S. either directly or indirectly by the new commercial
enterprise through revenues generated from increased exports, improved
regional productivity, job creation, or increased domestic capital investment
resulting from the pilot program.
Four steps involved in obtaining permanent residence:
STEP 1 – The employer must apply for Labor Certification with the Department
of Labor (DOL). To obtain Labor Certification approval, the employer must prove,
typically through newspaper advertising, that the employer was unsuccessful
in recruiting the right qualified workers for a certain position. The
employer may apply through Regular Labor Certification or Reduction in Recruitment
1) In Regular
Labor Certification processing, the employer must file DOL forms ETA 750A and
ETA 750B and await advertising instructions from the DOL. The processing time
for Regular Labor Certification varies between one to three years.
2) In Reduction in Recruitment (RIR) Labor Certification, the employer must
demonstrate to the DOL that it has been “unsuccessful” in recruiting
U.S. workers for the particular position. The DOL considers a good form of
evidence by the employer to be an advertisement in a major newspaper for three
consecutive days, including Sunday. The employer can also rely upon Internet
postings, job fairs, the services of headhunters, the like, as supporting evidence.
The processing time for RIR Labor Certification varies between three to eight
STEP 2 – After receiving the approved Labor Certification, the employer
must apply to the USCIS using Form I-140 (Immigrant Petition for Alien Worker). At
this point, the foreign national may include his or her spouse and children
on the I-140 to obtain their Green Cards as well. The processing time for the
I-140 is approximately three to eight months.
STEP 3 – After receiving the approved I-140 petition, the foreign national
must apply for Adjustment of Status, after which he or she (and the spouse
and children) will receive work authorization and advance parole (re-entry
permit to the U.S. after traveling abroad) within ninety days. The foreign
national will then have an interview for the Green Card in approximately six
to thirty-six months.
STEP 4 --The foreign national and his/her spouse and children will receive
the Green Cards (permanent residence) in the mail upon successful completion
of the interview.
Several factors impact the time required for approval of the application. These
factors include following procedures correctly and completely when filing each
type of application and the availability of quotas that are set by visa type
and by country. The processing time also depends upon the country in
which the foreign national was born. Hiring immigration expert attorneys to
file your petition with accuracy and efficiently will also help to speed up
the process and more likely bring about a successful result.
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