GENERAL REQUIREMENTS FOR PERMANENT RESIDENCE:
There are essentially four immigrant categories for those who wish to obtain permanent residence based on a job offer from an employer. First Preference (EB-1) has three sub-categories: individuals who have been recognized as “extraordinary” or one of the best in the world in their field, “outstanding researchers or professors” which requires proof the individual meets the “outstanding” definition in the Immigration Service’s regulations, and certain multinational managers or executives who have worked for at least one year outside the United States for a company which has common ownership with a U.S. company. Second Preference (EB-2) is primarily for individuals who have obtained at least a master’s degree and the job offer requires at least a master’s degree, or for individuals who can prove that their work in the U.S. will be in the “national interest.” Third Preference (EB-3) is for jobs which require at least a bachelor’s degree or two years of work experience. Fourth Preference (EB-4) is primarily for ministers who are working in a religious occupation.
LABOR CERTIFICATION AND THE I-140 PETITION
For all of the EB-1 categories, the national interest waiver category under EB-2 and the minister category under EB-4 begin with the filing of an I-140 petition (or an I-360 for EB-4). Since the employment-based categories all depend upon a quota, there is frequently a backlog in a particular quota which will delay the case. The place in line under the quota is established in these categories once the I-140 petition is filed.
For the EB-2 master’s degree category as well as both categories under EB-3, a labor certification is required before the I-140 petition can be filed. This labor certification process is the most common process used by individuals to gain permanent residence through employment and it is also the most complicated step in any immigration case. Essentially, the labor certification is a process through which the employer must prove to the Department of Labor that there are no qualified and available U.S. workers for the job. In a sense, it is a test of the labor market. If the employer can prove to the Department of Labor, through extremely complex regulations, that there is no qualified and available U.S. worker then the employer passes the “test.” If a qualified worker is found during the recruiting period, the test is “failed” and the labor certification will not be available. Due to the complexity of the labor certification process, and its importance to the permanent residence process, it is important to use immigration attorneys who are highly experienced in this process.
ADJUSTMENT OF STATUS OR CONSULAR PROCESSING
Once the I-140 petition is approved (or the labor certification application and I-140 petition) and the quota has become current under that particular category, the last step in the process will be the application for permanent residence itself. If the employee has been in the United States in valid status, then he or she may be eligible for adjustment of status which means obtaining permanent residence in the U.S. without having to go to the U.S. Consulate. If the employee has been outside the U.S. (employment-based immigration cases can be based on job offers in the future) then the applicant will be processed at the U.S. Consulate. If the employee has been in the U.S. but has violations of immigration status in his or her past, then consular processing will also be used instead of adjustment of status.