If you are a U.S. employer who wishes to hire foreign nationals to work in the United States, there are several potential options. Depending on the circumstances, one of the temporary work visa programs, such as H-1B for workers in specialty occupations, H-2A for agricultural workers or H-2B for non-agricultural temporary workers, may be a viable option. But in many situations, the best solution would be to file an employment-based green card petition on behalf of the individual(s) you wish to hire. This is especially true this year, when a record number of visas are available in this category.
Employment-Based Green Cards
In a typical year, 140,000 employment-based immigrant visas are available for noncitizens who wish to live and work permanently in the United States. However, during FY 2022, which extends from October 1, 2021 through September 30, 2022, about twice as many are up for grabs. The extra spots were made available because about 140,000 family-based green cards have gone unfilled due to pandemic-related backlogs at U.S. consulates and embassies abroad, many of whose operations were severely curtailed due to the coronavirus.
Different Preference Categories
The most common employment-based green card categories are first preference (EB-1), for priority workers with extraordinary ability; second preference (EB-2), for professionals with advanced degrees or exceptional ability; and third preference (EB-3), for professionals, skilled workers and other workers. Most of the extra visas have been allocated to the EB-1 and EB-2 categories.
EB-1: First Preference
The first-preference category is reserved for immigrants who can demonstrate they have extraordinary ability in their field, whether it be the sciences, arts, education, business or athletics; outstanding professors and researchers; and certain multinational executives and managers.
Foreign nationals qualifying based on extraordinary ability can petition for the visa themselves; they must provide evidence of a major one-time achievement, such as an Academy Award or Olympic Medal, or meet at least three of 10 criteria, such as receipt of nationally or internationally recognized prizes or membership in industry associations that demand outstanding achievement of members. They must also show that they will continue to work in their area of expertise.
Employers must file the initial petition for professors or researchers, who must demonstrate international recognition of their achievements and have at least three years of teaching or research experience in their area of expertise, and multinational managers or executives, who must have recently worked for at least a year outside the U.S. for an entity with whom the employer has a qualifying relationship.
EB-2: Second Preference
The EB-2 category is reserved for immigrants who work in professions requiring advanced degrees, who have exceptional ability or who qualify for a national interest waiver.
For professions requiring advanced degrees, the immigrant must possess a bachelor’s degree or foreign equivalent plus five years of post-baccalaureate, progressive work experience in the field, while meeting other requirements specific to the position. To qualify based on exceptional ability in the sciences, arts or business, the immigrant must meet position-specific requirements plus three criteria from a list that includes a degree or certificate from an educational institution related to their area of specialty or at least 10 years of full-time experience in their occupation. For the immigrant to qualify for a national interest waiver, the proposed endeavor must have substantial merit and national importance and the individual must be well-positioned to advance the endeavor.
EB-3: Third Preference
This is a more inclusive category that is open to professionals, skilled workers and other workers. Professionals are defined as immigrants whose jobs require at least a U.S. bachelor’s degree or foreign equivalent. Skilled workers’ jobs require a minimum of two years training or experience (relevant education may be considered training) and are not of a temporary or seasonal nature. The “other workers” subcategory is for positions requiring less than two years of training, education or experience, and which are not temporary or seasonal.
Labor Certification
For EB-3 and many EB-2 visas, employers must first go through the PERM process to receive permanent labor certification from the U.S. Department of Labor (DOL). This document will verify that there are no U.S. workers who are willing, able, qualified and available to accept the job at the prevailing wage for that occupation, level and geographic area, and that by hiring a foreign worker, the employer will not adversely impact the job opportunities, wages and working conditions of U.S. workers.
The permanent labor certification process is a multi-step, complex process, and missteps can lead to your application being selected for an audit and/or denied. It is therefore advisable that you work with an experienced immigration attorney on each step of the PERM process, which includes submitting a prevailing wage request to the DOL, advertising the position domestically and reviewing applications from U.S. workers.
Additional Steps
Once the DOL approves your PERM application, your next step is to file Form I-140, Immigrant Petition for Alien Workers with U.S. Citizenship and Immigration Services (USCIS). Workers who are already in the United States in another status must file Form I-485, Application to Register Permanent Residence or Adjust Status; this application can be done concurrently with the employer’s Form I-140, as long as there is a visa available. Workers who are outside the United States must go through a consular process in their country to apply for their green card.
Exceptions to PERM Rules
A permanent labor certificate is not required for EB-1 immigrants and for EB-2 immigrants who qualify for a national interest waiver. For certain other EB-2 workers, including certain professional nurses and physical therapists and those qualifying under the exceptional ability subcategory, the employer submits an uncertified application for permanent labor certification to USCIS at the time of filing Form I-140, and USCIS will apply DOL regulations in reviewing the labor application during the adjudication of the petition.
If you are looking to hire foreign nationals and would like to speak to an employment-based visa lawyer about employment-based green cards or other work visa programs, contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].
