Employment Based Immigrant Visas or “Green Cards”

Employment-based immigration is a complex process that may involve a number of government agencies within the United States Department of Labor, a State Department of Labor, the United States Citizenship and Immigration Services (USCIS), and the Department of State (DOS).  Various employment-based pathways are available to foreign nationals seeking permanent resident status (a “Green Card”).

Labor Certification under “PERM”

Permanent labor certification by the United States Department of Labor is required in most employer-sponsored permanent residence cases.  In its application for permanent labor certification, an employer must prove that there are no available, willing, and able U.S. workers to fill the job position and that the employment of a foreign national in that position will not adversely affect the wages and working conditions of U.S. workers similarly employed.  In addition, the employer must comply with strict procedural requirements set forth in the regulations.

The DOL issues labor certifications for foreign nationals based on specific criteria intended to protect the rights and working condition of US workers while at the same time facilitating opportunities for employers to hire qualified foreign labor if that labor cannot effectively be obtained in the United States.

Pursuant to a regulation change in 2004, employers who file for labor certification on or after March 28, 2005 now go through what is commonly referred to as the PERM process (PERM stands for “Program Electronic Review Management”).  The PERM system is an attestation and audit system through which the government can electronically receive and process labor certification applications.  If the DOL certifies the labor certification application, the employer and foreign national can continue the permanent residence process with the submission of the appropriate applications to the Department of Homeland Security, US Citizenship and Immigration Service (USCIS).

Due to the shortage of registered nurses and physical therapists in the United States, the Department of Labor has designated these occupations under “Schedule A” for an expedited path to permanent residence.  Schedule A is a list of pre-certified occupations for which the Secretary of the Department of Labor previously has determined that there are an insufficient number of U.S. workers who are able, willing, qualified and available, and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of foreign workers in such occupations.  These occupations do not require the recruitment process normally required for labor certification.

Foreign nurses can either pass the National Council Licensure Exam (NCLEX-RN) and be licensed in accordance with state licensure requirements or be certified through the CGFNS certification program. Physical therapist foreign nationals must possess the equivalent of a four-year U.S. degree and can be credentialed by the Foreign Credentialing Commission on Physical Therapy (FCCPT).

In addition, USDOL has established “special handling” or expedited procedures for the recruitment of university faculty as well as professional athletes in team sports.

Priority Workers

The EB-1 preference class includes individuals of “sustained national or international acclaim” with “extraordinary ability” in the sciences, arts, education, business or athletics; “outstanding professors and researchers” recognized internationally in a specific academic area; and “certain multinational executives and managers.”  Foreign nationals holding O-1 or L-1 nonimmigrant visa status often qualify for immigrant status under this category.

Professionals with Advanced Degrees or Exceptional Ability

The EB-2 preference class includes members of the professions holding advanced degrees and foreign nationals who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests or welfare of the United States.  To qualify as a member of the professions, the applicant must hold an advanced degree or its equivalent (that is, any degree above that of baccalaureate or a baccalaureate degree with at least five (5) years of progressive experience in the specialty).  If the profession requires a degree higher than a Master’s degree, the alien must possess that degree.

Professionals and Other Workers

The EB-3 preference classification includes skilled workers, professionals, and “other workers.”  Skilled worker positions require a minimum of two (2) years of training or experience.  Professionals must hold a baccalaureate degree (or foreign equivalent) in the field and must establish that a baccalaureate degree is the normal requirement for entry into the profession.

The “other workers” (unskilled workers) category includes positions that require less than two (2) years of training or experience.

The EB-4 preference class includes “special immigrants” including religious workers, certain long time employees of the U.S. government, and citizens of Iraq or Afghanistan that have worked for the U.S. Armed Forces as a translator for at least one (1) year

The Law Firm of Washington Immigration Attorney Robert Charles Hill – Hill Visa Law – is experienced in working with its clients to provide such counsel and will be happy to assist you. To arrange a telephone consultation, call us at (202) 721-7205 or use the consultation form to describe your circumstances.

Caveat: The information above is intended to be only a general description of various visa categories under United States immigration laws and must not be construed as legal advice applicable in any specific matter. Facts and circumstances will vary from case to case and adequate counsel can be provided only upon deliberate consideration of the needs and circumstances of an individual client.

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