Employment Based Immigration – 3 Steps to Understanding the Process

Employment Based Immigration – 3 Steps to Understanding the Process

U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. The vast majority of applicants will fall into the EB-2 or EB-3 category. Sponsoring foreign workers for permanent residency on the basis of an EB-2 or EB-3 petition generally requires a three step process:

A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which an employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. Workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management) 취업이민 영주권.

Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and, H, etc.

Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents.

The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and education level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will make a petition for either EB-2 or EB-3 classification.

An alien worker qualifies for an EB-2 petition, if he or she: 1.) has an approved labor certification, unless waived through a National Interest Waiver; AND 2.) Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the alien worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR 3.) Possesses an exceptional ability and the job offer requires a person of exceptional ability.

If you are an academic or have contributed significantly to a field such as Science, Education, Business, Arts, or Athletics, and you have the desire to immigrate yourself and your immediate family to the United States, filing for an EB1 visa is a great option that gives you a high chance for success. First you must meet the EB1 requirement as set forth by the U.S. Congress and U.S. Citizenship and Immigration Service (USCIS).

The most important requirement for winning an EB1 visa is the demonstration of “Extraordinary Ability”. The USCIS defines “Extraordinary Ability” as a level of expertise indicating that you are one of that small per cent who has risen to the very top of your field of endeavor. “Top of the Top”. Your achievements must have been demonstrated by sustained national or international acclaim and be recognized in the field through extensive documentation.

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