Navigating the world of employment-based immigration can be a daunting task for employers and foreign nationals alike. With all the paperwork, processing times, and legal jargon, it’s easy to get overwhelmed.
But have no fear—this comprehensive guide will break down the essential things you need to know about employment-based immigrant visas, so you can confidently make informed decisions for your company and your future.
What are Employment-Based Immigrant Visas?
Employment-based immigrant visas are a pathway for foreign nationals to obtain permanent residency (also known as a Green Card) in the United States through employment. These visas are divided into five preference categories, each with eligibility criteria and annual numerical limits. The five categories are:
- EB-1: Priority Workers
- EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability
- EB-3: Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
- EB-4: Certain Special Immigrants
- EB-5: Immigrant Investors
The Labor Certification Process
One critical aspect of employment-based immigration is the labor certification process, which is required for most EB-2 and EB-3 applicants. Labor certification ensures that hiring a foreign worker will not adversely affect similarly employed U.S. workers’ wages and working conditions.
To obtain labor certification, the employer must go through the following steps:
- Prevailing Wage Determination
The employer must request a prevailing wage determination (PWD) from the Department of Labor (DOL) for the position being offered. The PWD will establish the minimum wage the employer must pay the foreign worker.
- Job Order and Recruitment
The employer must place a job order with the state workforce agency (SWA) and conduct recruitment efforts, including advertising the position in newspapers, professional journals, or the company’s website. The employer must also document the results of these recruitment efforts.
- Filing the Labor Certification Application
After completing the recruitment process, the employer must file a labor certification application (Form ETA-9089) with the DOL. The application must include information about the position, the foreign worker, and the recruitment process.
- DOL Review and Determination
The DOL will review the application and approve or deny the labor certification. If approved, the employer can then proceed with filing the immigrant visa petition (Form I-140) with U.S. Citizenship and Immigration Services (USCIS).
Filing the Immigrant Visa Petition
Once the labor certification (if required) is approved, the employer must file Form I-140, the Immigrant Petition for Alien Worker, with USCIS.
The petition must include evidence that the employer can pay the offered wage, the foreign worker meets the qualifications, and the job offer is genuine. If the petition is approved, the foreign worker’s priority date is established, determining when to apply for a Green Card.
The Visa Bulletin and Priority Dates
Due to the annual numerical limits on employment-based immigrant visas, there is often a backlog of applicants waiting for a visa number to become available. The U.S. Department of State (DOS) publishes a monthly Visa Bulletin that lists the priority dates for each preference category and country of chargeability.
When the foreign worker’s priority date becomes current (i.e., earlier than the date listed in the Visa Bulletin), they can apply for a Green Card either through adjustment of status (if they are already in the U.S.) or consular processing (if they are abroad).
Obtaining an employment-based immigrant visa is a complex and time-consuming process, but it can be a valuable investment for the employer and the foreign worker.
By understanding the basics of the process and working with experienced professionals, you can successfully navigate the world of employment-based immigration and secure a brighter future in the United States. Consult professionals to understand what you need to do and how to get it done.
At Pena Immigration Law, we can handle any immigration matter. The immigration system can be quite complex and daunting. That’s why we want to help you navigate through the process and ensure the best chance of success. If you’re looking for an immigration lawyer in Houston, we can help you. Contact us today to learn more and get started.