Many immigrants opt for this route, which requires an employer to "sponsor" (i.e. to petition before USCIS) the immigrant (known as the alien beneficiary) through a presumed future job.
Employment based immigration can be:
1. Employment based on First Preference
Persons with extraordinary ability
Outstanding professors and researchers
Managers and executives in multinational companies
2. Employment based on Second Preference
Professionals with advanced degrees
Persons with exceptional ability
Exceptional professors and researchers
3. Employment Second Preference with National Interest Waiver (NIW)
Persons with exceptional ability involved in activities that will substantially benefit the U.S.
national interest
Advanced degree professionals involved in activities that will substantially benefit the U.S. national interest
4. Employment based on Third Preference
Professionals with a U.S. bachelor's or foreign equivalent degree
Skilled workers
Unskilled workers
5. Schedule A Occupations:
Registered nurses and physical therapists
Persons qualified to work in one of the shortage occupations on the Schedule A list
The United States Employment Service (Director), has determined that there are not sufficient United States workers who are able, willing, qualified, and available for the occupations listed below on Schedule A and that the wages and working conditions of United States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A occupations.
Group I:
Persons who will be employed as physical therapists, and who possess all the qualifications necessary to take the physical therapist licensing examination in the State in which they propose to practice physical therapy.
Aliens who will be employed as professional nurses; and (i) who have passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) Examination; or (ii) who hold a full and unrestricted license to practice professional nursing in the State of intended employment.
Definitions of Group I occupations:
Physical therapist" means a person who applies the art and science of physical therapy to the treatment of patients with disabilities, disorders and injuries to relieve pain, develop or restore function, and maintain performance, using physical means, such as exercise, massage, heat, water, light, and electricity, as prescribed by a physician (or surgeon).
Professional nurse" is defined in Sec. 656.50.
Group II:
Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
The three-step process by which an employer can "sponsor" (i.e. to petition before USCIS) the immigrant is described here in more detail for employment-based immigration applications. After the process is complete, the alien is expected to take the certified job offered by the employer to substantiate his or her immigrant status, since the application ultimately rests on the alien's employment with that company in that particular position.
1. Immigrant Petition - the first step includes the pre-requisite labor certification upon which the actual petition will reside.
Labor Certification — the employer must legally prove that it has a need to hire an alien for a specific position and that there is no minimally qualified U.S. citizen or Lawful Permanent Residents (LPR) available to fill that position, hence the reason for hiring the alien. Some of the requirements to prove this situation include: proof of advertising for the specific position; skill requirements particular to the job; verification of the prevailing wage for a position; and the employer's ability to pay. This is currently done through an electronic system known as PERM. The date when the labor certification application is filed becomes the applicant's priority date. In some cases, for highly skilled foreign nationals (EB1 and EB2 National Interest Waiver, e.g. researchers, athletes, artists or business executives) and "Schedule A" labor (nurses and physical therapists), this step is waived. This step is processed by the United States Department of Labor (DOL).
Immigrant Petition — the employer applies on the alien's behalf to obtain a visa number. The application is form I-140, Immigrant Petition for Alien Worker, and it is processed by the USCIS. There are several EB (employment-based) immigrant categories under which the alien may apply, with progressively stricter requirements, but often shorter waiting times. Many of the applications are processed under the EB3 category. Currently, this process takes up to 6 months. Many of the EB categories allow expedited processing of this stage, known as "premium processing".
2. Immigrant Visa Availability. When the immigrant petition is approved by the USCIS, the petition is forwarded to the NVC for visa allocation. Currently this step centers around the priority date concept.
Priority date — the visa becomes available when the applicant's priority date is earlier than the cutoff date announced on the DOS's Visa Bulletin or when the immigrant visa category the applicant is assigned to is announced as "current". A "current" designation indicates that visa numbers are available to all applicants in the corresponding immigrant category. Petitions with priority dates earlier than the cutoff date are expected to have visas available, therefore those applicants are eligible for final adjudication. When the NVC determines that a visa number could be available for a particular immigrant petition, a visa is tentatively allocated to the applicant. The NVC will send a letter stating that the applicant may be eligible for adjustment of status, and requiring the applicant to choose either to adjust status with the USCIS directly, or apply at the U.S. consulate abroad. This waiting process determines when the applicant can expect the immigration case to be adjudicated. Due to quotas imposed on EB visa categories, there are more approved immigrant petitions than visas available under INA. High demand for visas has created a backlog of approved but unadjudicated cases. In addition, due to processing inefficiencies throughout DOS and USCIS systems, not all visas available under the quota system in a given year were allocated to applicants by the DOS. Since there is no quota carry-over to the next fiscal year, for several years visa quotas have not been fully used, thus adding to the visa backlog.
3. Immigrant Visa Adjudication. When the NVC determines that an immigrant visa is available, the case can be adjudicated. If the alien is already in the USA, that alien has a choice to finalize the green card process via adjustment of status in the USA, or via consular processing abroad. If the alien is outside of the USA he/she can only apply for an immigrant visa at the U.S. consulate. The USCIS does not allow an alien to pursue consular processing and AOS simultaneously. Prior to filing the form I-485 (Adjustment of Status) it is required that the applicant have a medical examination performed by a USCIS-approved civil surgeon. The examination includes a blood test and specific immunizations, unless the applicant provides proof that the required immunizations were already done elsewhere. The civil surgeon hands the applicant a sealed envelope containing a completed form I-693, which must be included unopened with the I-485 application.
Adjustment of Status (AOS) — after the alien has a labor certification and has been provisionally allocated a visa number, the final step is to change his or her status to permanent residency. Adjustment of status is submitted to USCIS via form I-485, Application to Register Permanent Residence or Adjust Status. If an immigrant visa number is available, the USCIS will allow "concurrent filing": it will accept forms I-140 and I-485 submitted in the same package or will accept form I-485 even before the approval of the I-140.
Consular Processing — this is an alternative to AOS, but still requires the immigrant visa petition to be completed. In the past (pre-2005), this process was somewhat faster than applying for AOS, so was sometimes used to circumvent long backlogs (of over two years in some cases). However, due to recent efficiency improvements by the USCIS, it is not clear whether applying via consular processing is faster than the regular AOS process. Consular processing is also thought to be riskier since there is no or very little recourse for appeal if the officer denies the application.
This is just a small portion of information and the extent of complexity of green card issuance. Green Card processing can be extremely difficult and confusing. If you would like the assistance of an experienced immigration lawyer, please contact or call Mikin Law Firm at 1-415-601-0210 to schedule a consultation today.
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