Green Card through Employment

Obtaining a Green Card through Employment

Lawful Permanent Residence may be gained through an offer of permanent employment from a U.S. company. In the case of all business-related immigrant visa filings, the spouse and unmarried, minor children (under the age of 21) of the principal beneficiary gain LPR status without having to be petitioned for separately.

The business-related visa preference categories are as follows:

(1) First Preference (priority workers);

(2) Second Preference (workers with advanced degrees and individuals of exceptional ability);

(3) Third Preference (skilled workers, professionals and other workers);

(4) Fourth Preference (certain special immigrants); and

(5) Fifth Preference (investors in employment creating new enterprises).

“Priority workers” include managers and executives who have worked with an overseas employer in a managerial or executive position for at least one year out of the past three years. It also includes individuals of “extraordinary ability” in the sciences, arts, education, business or athletics and also “outstanding professors and researchers.”

The Second Preference “advanced degree professionals and aliens of exceptional ability” category includes individuals who hold a U.S. academic professional degree at the Masters level or higher, as well as those individuals whose expertise is significantly above that ordinarily encountered in the sciences, arts or business. Individuals immigrating in this preference will be required to obtain labor certification.

The “skilled workers, professionals and other workers” category is split into two subcategories: (1) skilled workers and professionals, and (2) other workers. The skilled workers and professionals subcategory includes individuals with offers to work in U.S. in jobs requiring two years or more of post-secondary education, training and/or experience. The unskilled workers subcategory includes individuals in positions requiring less than two years of experience, post-secondary education and/or training. A total of 30,000 visas per year are available to individuals immigrating in the skilled workers and professionals subcategory; only 10,000 visas per year are available in the unskilled workers subcategory.

Special interest workers include certain individuals who have been employed by the U.S. government, religious workers and other groups of special concern to the U.S.

The investor category is for individuals who invest $1 million or more in a new commercial enterprise in the U.S., creating employment for not less than ten (10) U.S. employees. The investment can be as low as $500,000 in designated areas of high unemployment or rural areas. The investment must be active and not passive and must be ongoing for two years before unconditional LPR status will be granted.

The procedure for obtaining an immigrant visa under one of these Preferences follows three (3) steps.

First, employers of workers in the Second and Third Preferences are required to seek Alien Labor Certification from the U.S. Department of Labor (“DOL”) for their prospective employees before they can petition the United States Citizenship and Immigration Services (“USCIS”) for an immigrant visa. Labor certification is a process whereby the employer must prove to the DOL that there are no U.S. workers who are able, willing, available and qualified to fill the position in the area of intended employment. Labor certification requires that the employer actively recruit U.S. workers in the area of intended employment for the position in question as if the position were vacant.

Next, all employers must complete and file a “Preference Petition” with the United States Citizenship and Immigration Services (“USCIS”) to seek classification for the individual in one of the preference categories. This petition will be adjudicated by the USCIS at a Regional Service Center. The Regional Service Center makes its decision entirely on the record before it; it is impossible to discuss a petition and difficult to supplement it once it has been filed.

If a visa number is available, the individual may proceed to the final step, which is the actual application for LPR status. This application may take the form of (1) an application to adjust status, which may be filed concurrently with the preference petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.