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Employment-based Permanent Residence

Employers may sponsor foreign nationals for Lawful Permanent Residence (“LPR”) based on the availability of a permanent position with that employer. This process normally entails three-steps: 1) the employer filing a labor certificationapplication with the U.S. Department of Labor (“DOL”) after testing the U.S. labor market and demonstrating that there are no qualified U.S. workers available for the job; 2) the employer filing of an I-140 Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Services (“USCIS”); and 3) the foreign national (and any of his/her dependents) filing an I-485 Application to Adjust Status to Permanent Residence with USCIS (or an immigrant visa application at a U.S. consulate, if the employee is residing abroad), demonstrating that s/he is not inadmissible for any reason (criminal, security, health, or other reasons).

Preference Categories

The need to obtain a labor certification depends on the employment-based classification within which the foreign national fits. USCIS classifies foreign workers seeking to become LPRs in different preference categories based on their education, professional experience, particular vocation, and other factors. There are a total of five employment-based preference categories.

Labor Certifications are required of individuals in the Second Preference Category (except in National Interest Waiver cases) and the Third Preference Category. The Second Preference category (“EB-2”) includes “Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability.” An advanced degree is considered to be a Master’s degree or higher or a Bachelor’s degree plus a minimum of five years of progressively responsible post- Baccalaureate experience. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered.

The Third Preference category (“EB-3”) includes “Professionals, Skilled, and Other Workers.” Professionals include persons who are members of the professions who have at least a Bachelor’s degree. Skilled Workers are individuals who will be employed in a full-time permanent job requiring at least two years of training or work experience. Other Workers are foreign nationals with less than two years of training or work experience.

No labor certification is required for foreign nationals in the other three employment-based preference categories (First, Fourth, and Fifth Preference). These categories include Aliens of Extraordinary Ability, Outstanding Professors or Researchers, Multinational Managers or Executives, Investors, and others in high demand occupations. Some categories of foreign nationals may not require an employer to sponsor them for permanent residence and may do so by filing an I-140 petition on their own behalf.  

One such category is the Employment Creation (Investors) classification in the Employment-Based Fifth Preference Category ("EB-5"). Foreign nationals who invest at least $1 million (or $500,000 in targeted employment areas) in a new commercial enterprise in the United States which employs at least 10 fulltime U.S. workers and who engage in the day-to-day management of the company, may be eligible to apply for permanent residence. In the alternative, foreign nationals may invest in a Regional Center, which is defined by USCIS as "any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment." Investment in a Regional Center relaxes the job creation requirement in that employment may be direct or indirect and also relaxes the requirement that the foreign national engage in the day-to-day management of the company. Click here for more information on EB-5 visas.

National Interest Waivers – which fall within the EB-2 category – also do not require a labor certification. They are available for foreign nationals seeking employment in an area of substantial intrinsic merit to the United States, the benefit of which would be national in scope. National Interest Waivers are also available for primary care physicians practicing in Health Professional Shortage Areas (HPSA), Mental Health Professional Areas (MHPSA – for psychiatrists only), Medically Underserved Areas (MUA), or Veterans Affairs facilities, or for specialists in Physician Scarcity Areas (PSA).

Click here for more information on employment-based permanent residence