Getting a Green Card Through Employment

U.S. immigration law provides for the acquisition of legal permanent residence ("a green card") through employment in a number of different ways.

Our firm has extensive experience working with both U.S. employers and foreign nationals in applying under the various categories for employment based immigration.

While most categories require that a U.S. employer petition for a prospective employee, a few allow the foreign national to self-petition. All categories are subject to a quota and often many of them are oversubscribed. If that is the case, there is a waiting time until a green card can be issued.

Filing an application for an employment based green card, in and of itself, does not authorize the foreign national to legally stay and work in the United States, so separate non-immigrant visa status must be obtained if the person seeks to come to or remain in the United States while waiting for the green card. A successful application for an employment based green card allows the foreign national to bring their spouse and minor children with them to the United States.

Below are the categories for obtaining lawful permanent residence through employment:

Extraordinary Ability Alien (EB-1-1)

If a foreign national qualifies as an "extraordinary ability alien" he or she may apply for legal permanent residence without an employer proving that there is no qualified U.S. worker to perform the job. Importantly, the quota for "extraordinary ability aliens" historically has not been oversubscribed, therefore there is no waiting list.

In order to qualify as an "Extraordinary Ability Alien," the applicant:

• Must be in the field of sciences, arts, education, business or athletics and have sustained national or international acclaim and achievements recognized in the field through extensive documentation.
• The foreign national must have proof of a one-time achievement (that is, a major, internationally recognized award) OR evidence of at least three of the following:
• the receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• membership in associations in the field which demand outstanding achievement of their members;
• published material about the person in professional or major trade publications or other major media;
• judging the work of others, either individually or on a panel;
• original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• authorship of scholarly articles in professional or major trade publications or other major media;
• the person's work has been displayed at artistic exhibitions or showcases;
• performance of a leading or critical role in distinguished organizations;
• a high salary or other significantly higher remuneration in relation to others in the field;
• commercial successes in the performing arts.
• Must be seeking to enter the U.S. to continue to work in the area of extraordinary ability. This application does not require a petitioning employer.

Our firm will help you to determine if you can benefit from an application in this category and, if so, guide you in gathering the necessary supporting documentation and prepare a persuasive application for you.

Outstanding Professors and Researchers (EB-1-2)

Certain professors and researchers can get green cards without presenting proof that there is no qualified U.S. worker to perform the job.

To qualify, the applicant:

• must have at least three years of experience in teaching or research;
• must be seeking entry for a tenure or tenure track teaching position in an institution of higher education or
• must be seeking entry to the United States for a comparable position at an institute of higher education to conduct research. If the position is to conduct research with a private employer, the employer must employ at least three full-time researchers and there must be proof of the research entity's accomplishments in the academic field.

The professor or researcher must be recognized internationally as outstanding in his or her academic field as evidenced by at least two of the following:

• Receipt of major prizes or awards
• Membership in an association which requires outstanding achievement
• Published material in professional publications written by others about the applicant's work
• Evidence of the person's participation as a judge of the work of others
• Evidence of original scientific research
• Authorship of scholarly books or articles in the field

We will help you to gather the most compelling supporting evidence and prepare a persuasive application that explains why you qualify for a green card as an outstanding professor or researcher.

Multinational Executives and Managers (EB-1-3)

An executive or manager of an international corporation or firm may qualify for a green card if they meet certain requirements.

The applicant must have been employed in a managerial or executive capacity outside the United States for at least one year by a firm or corporation within the three years preceding the petition. A person who has been in the United States for three or more years in L-1A status can meet this requirement if they have been working for the same employer, or an affiliate or subsidiary, in the U.S. and were employed for at least one of the last three years by the company abroad before entering the U.S. in the L-1A status and the applicant must be seeking to enter the U.S. to continue service in a managerial or executive capacity to that same firm or corporation or its subsidiary or affiliate;

Our experienced legal team will assure that you qualify and prepare a thorough and persuasive application.

Foreign Nationals with Exceptional Ability or Advanced Degree (EB-2)

To qualify for a green card in this category, a foreign national must have at least the equivalent of a U.S. Master's degree or be "exceptional" in their field. A person with a bachelor's degree or a foreign equivalent may also qualify if they have five years of progressive work experience in the specialty before filing.

Labor certification must first be issued by the U.S. Department of Labor. To obtain labor certification, the employer offering the position must show that the offered wage and working conditions will not adversely affect U.S. workers in similarly employed positions. To do so, the employer must recruit American workers by publishing ads and screening job applicants. If no U.S. workers apply, or no U.S. applicants are deemed to be qualified, and other requirements are met, the Department of Labor may issue labor certification.

After labor certification is issued, the employer must file an I-140 petition with the United States Citizenship and Immigration Services (USCIS) documenting that the employer has sufficient funds to pay the prevailing wage from the time of the filing of the application up to the issuance of the green card and that the foreign national has the academic credentials and work experience required for the offered position. If the I-140 petition is approved, and if the priority date of the application is current under the quota that applies, the foreign national can apply for a green card.

Our lawyers will carefully analyze the position offered and the foreign national's credentials to prepare the strongest petition possible, assuring compliance with all requirements.

Waiver of the Labor Certification Requirement If the Services to be Performed are in the "National Interest."

If a foreign national who has at least a Master's degree or a record that demonstrates that they are "exceptional" in their field, and, further, if they can establish that a skill they will bring to the United States is in the "national interest," the labor certification requirement will be waived. The foreign national may self-petition as long as he or she can show that the skill they possess will be put to use in the United States.

To establish "national interest," the foreign national must show:

1. substantial merit and national importance of the foreign national's endeavor,
2. the experience and skills of the foreign national that makes him or her "well positioned" to pursue this work, and
3. that on balance, it is beneficial to forego the labor certification requirement

Our lawyers will guide you in gathering the necessary supporting documentation and prepare a persuasive application for a waiver of the labor certification requirement on your behalf.

Professionals and Skilled Workers (EB-3)

The position offered must require at least two years of work experience or a Bachelor's degree. Labor certification must first be issued by the U.S. Department of Labor. To obtain labor certification, the employer offering the position must show that the offered wage and working conditions will not adversely affect U.S. workers in similarly employed positions. To do so, the employer must recruit American workers by publishing ads and screening job applicants. If no U.S. workers apply, or no U.S. applicants are deemed to be qualified, and other requirements are met, the U.S. Department of Labor may issue labor certification.

After labor certification is issued, the employer must file an I-140 petition with the United States Citizenship and Immigration Services (USCIS) documenting that the employer has sufficient funds to pay the prevailing wage from the time of the filing of the application up to the issuance of the green card and that the foreign national has the academic credentials and work experience required for the offered position. If the I-140 petition is approved, and if the priority date of the application is current under the quota that applies, the foreign national can apply for a green card.

However, there are many factors involved in determining whether a green card will ultimately be issued after this procedure is completed. For example, a foreign national, despite being the beneficiary of an approved I-140, may not qualify for adjustment of status if they are not in the United States in legal status. If they leave the United States to apply at a U.S. consul abroad for permanent residence, but have been in the United States in "unlawful presence" for six to twelve months or over twelve months, they may trigger the three or ten year bar, respectively, to returning. They would then not get the green card to be able to come back to the United States.

Our lawyers have many years of experience in preparing labor certification applications, carefully analyzing the many factors that go into submitting a successful initial application to the Department of Labor through to the foreign national's application for legal permanent residence. We will also advise you about the likelihood of ultimate success in getting a green card depending on the facts of your case.

Other Workers (EW)

The applicant must be seeking to come to the United States to perform unskilled labor requiring less than two years of work experience, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. Labor certification by the U.S. Department of Labor (DOL) is required. To obtain labor certification, the employer offering the position must show that the wage and working conditions do not adversely affect U.S. workers in similarly employed positions. A period of recruitment must then be undertaken by the prospective employer with published advertising and screening of applicants. If no U.S. workers apply or no U.S. applicants are deemed to be qualified, and other requirements are met, the DOL may issue labor certification.

After labor certification is issued, the employer must file an I-140 petition with the United States Citizenship and Immigration Services (USCIS) petition documenting that the employer has sufficient funds to pay the prevailing wage from the time of the filing of the application up to the issuance of the green card and that the foreign national has the academic credentials and work experience required for the offered position. If the I-140 petition is approved and the priority date of the application is current, the foreign national can apply for a green card.

However, there are many factors involved in determining whether a green card will be issued. For example, a person who is the beneficiary of an approved I-140 may not qualify for adjustment of status if they are not in the United States in legal status. If they leave the United States to attend a consular interview for their green card they may trigger the 3 or 10 year bar to returning to the United States and therefore not get the green card.

Our lawyers have many years of experience in preparing labor certification applications, carefully analyzing the many factors that go into submitting a successful initial application to the Department of Labor through to the foreign national's application for legal permanent residence. We will also advise you about the likelihood of ultimate success in getting a green card depending on the facts of your case.

Religious Workers (EB-4)

To qualify as a special immigrant religious worker, the applicant must:

• Have been a member of a religious denomination that has a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of a petition for this status with USCIS.
• Seek to enter the United States to work in a full time, compensated position in one of the following occupations:
• Solely as a minister of that religious denomination;
• A religious vocation either in a professional or nonprofessional capacity; or
• A religious occupation either in a professional or nonprofessional capacity
• Be coming to work for either:
• A bona fide non-profit religious organization in the United States; or
• An organization that is affiliated with the bona fide non-profit religious denomination in the United States
• Have been working in one of the positions described above after the age of fourteen, either abroad or in lawful immigration status in the United States, continuously for at least two years immediately before the filing of a petition with USCIS. The prior religious work need not correspond precisely to the type of work to be performed. A break in the continuity of the work during the preceding two years will not affect eligibility so long as:
  • The foreign national was still employed as a religious worker;
  • The break did not exceed two years; and
  • The nature of the break was for further religious training or for a sabbatical that did not involve unauthorized work in the United States. However, the foreign national must have been a member of the petitioner's denomination throughout the two years of qualifying employment.

Our office represents religious workers from many different denominations. We are very experienced in the presentation of these applications and the concerns that USCIS has in adjudicating them. We will carefully prepare your religious worker petition to be in compliance with all requirements and to maximize your chances of approval.