Employment Based Green Cards
There are five categories of foreign national workers that may seek lawful permanent residence. The categories are referred to as “employment-based” classifications, or “EB”.
PERM Labor Certifications (EB-2, EB-3):
A foreign national seeking to obtain U.S. lawful permanent residence through employment must be the beneficiary of an approved application for permanent employment certification. This application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are immediately available to accept the offered position at the prevailing (or average) wage for the area of intended employment.
The U.S. employer is currently required to obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC).
National Prevailing Wage Center will make prevailing wage determinations based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located.
After obtaining a PWD, the employer is required to post a printed, internal job notice for at least 10 consecutive business days. This notice must be posted between 180 and 30 days before filing the application.
In addition to the job posting, the employer must use its standard in-house electronic and printed methods for advertising the position.
Additional recruitment requirements apply to employers seeking to hire someone in a professional occupation, which is generally one that has been listed by the DOL.
If the occupation qualifies as professional, the employer must undertake three recruitment steps in addition to the steps outlined above. The three steps must be chosen from the list provided in the regulations.
The following venues are permissible for additional recruitment for professional positions:
(a) job fairs;
(b) the employer’s website;
(c) job search website other than the employer’s;
(d) on-campus recruiting;
(e) professional or trade organizations (i.e., placing an advertisement in their newsletter or journal);
(f) private employment firms that conduct recruitment;
(g) an employee referral program that provides incentives;
(h) campus placement offices;
(i) advertisement in local and ethnic newspapers;
(j) radio and television advertisements; and
(k) webpage advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the application; however, only one of the three steps can take place within 30 days of filing.
If the employer determines that there are no qualified and available U.S. workers for the offered position, then the recruitment has been completed and the Labor Certification Application, Form ETA-9089, can be submitted electronically.
If the PERM application is certified and the employer wishes to proceed to the next step, filing the employment-based immigrant petition (Form I-140) with USCIS, the beneficiary will be required to provide documentation to establish that he or she met the advertised requirements for the position on the date that the PERM application was filed.
The beneficiary of the approved PERM application is permitted to file his or her applications for adjustment of status (the application that grants permanent residence known as Form I-485), advance parole (travel document) and employment authorization concurrently with the employer’s immigrant petition.
EB-2 National Interest Waiver:
“As a seasoned NIW immigration expert, I wholeheartedly welcomed the new EB-2 NIW precedent decision, Matter of Dhanasar, published on 12/27/2016. The new decision effectively replaces the previous NYSDOT and makes the EB-2 NIW widely available to applicants who did not qualify under the old NIW standard. It remains to be seen as to how the USCIS will adjudicate cases under the new NIW standard.”
Dobrina Dobreva, Esq
The new ruling makes the self-petition EB2 national interest waiver much more widely available. As a result, we anticipate a significant increase in filings, including in some cases where the self-petition EB1 extraordinary ability immigrant visa category might be in consideration.
A foreign national seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
These three determinations are the basis for the three-prong test that now governs the NIW process. To qualify, all NIW applicants must establish:
- The waiver applicant’s proposed endeavor must have both substantial merit and national importance. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.
- The waiver applicant must demonstrate that they are well positioned to advance the proposed endeavor. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
- The waiver applicant must demonstrate that it would be beneficial to the United States to waive the job offer and labor certification requirements. n performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.
We are pleased to announce that DLO has successfully guided NIW applicants through the process and has secured numerous green cards. For all of our NIW applicants we provide the following services:
- Free evaluation and analysis for your petition. Please send us your CV, resume and background information (degree, current position, publication, journal, and citation numbers).
- Develop a NIW filing strategy unique to your case. For example, we have successfully received NIW approval for foreign nationals who did not have PhD degrees nor citations. In these cases, we focused on their work and the impact of their work in the industry.
- Provide guidance, templates and samples for the letters of recommendation.
- Prepare Index of Exhibits, Petition Letter
- Provide information and help with the I-485, Adjustment of Status Application.
» For more detailed information or to schedule a consultation, please contact our office at 214-609-0793 or email: Dobreva Law Office.