By Attorneys Devin M. Connolly & Nancy E. Miller
A common way to be granted permanent resident status (“Green Card”) in the U.S. is through employment. Temporary work visas receive a lot of attention and publicity, but it is also possible for employers to sponsor foreign workers for green cards. This method has become increasingly common in recent years since many people do not have family members that can petition them.
The route to a green card through employment is a multi-step process, and can take anywhere from 6 months to 6 years or longer to complete. When seeking permanent resident status through employment, it is obviously required that a foreign-born person have an employer or prospective employer who is willing to file a petition for them. The petitioner then begins the process by filing a labor certification request with U.S. Department of Labor (“DOL”). This filing is a complex, multi-step process.
The first part of having a labor certification request approved is to obtain a prevailing wage determination from the DOL. The determination is based on the job’s duties and responsibilities, the minimum qualifications necessary to adequately perform the job, and the worksite location. The purpose of the prevailing wage determination is to protect the labor market. By requiring that the salary offered is the “market” salary, foreign-born workers are protected from exploitation and the U.S. workers are protected from losing their jobs to immigrants that are being paid only a fraction of a reasonable salary.
The next step is for the employer to conduct proper recruitment for the position by placing advertisements, posting notice of the opportunity, etc. This step is essentially the point of the labor certification process – to demonstrate to the DOL that there are no willing, able, qualified, and available U.S. workers for the position. As part of the process, DOL examines the job duties and education requirements to determine that they are truly necessary for the job offered and that the foreign-born worker is qualified to perform the job. DOL also looks to whether the job is truly open to U.S. workers. As part of that examination DOL compares the job-requirements as stated in the application with the foreign-born worker’s background to determine that the job duties are not tailored to the alien. DOL also investigates whether there is a family relationship between the employer and the job-seeker.
Following the approval of the labor certification request, the employer apply for an Immigrant Petition with the U.S. Citizenship and Immigration Service (“USCIS”). The USCIS will review the petition in conjunction with the employer’s required financial documents and the applicable documents regarding the alien’s qualifications for the offered position. One major concern is the employer’s ability to pay the prevailing wage. The documentation submitted in support of the petition must be persuasive and convincing. If the supporting documentation does not satisfy CIS’ concerns, it is not required to ask for more or better evidence. It can just deny the request.
If an alien is able to successfully navigate the foregoing steps, then they are well on their way to acquiring lawful permanent residence status in the U.S. However, if they are residing in the U.S., it is critical that they remember that they are only eligible for an adjustment to permanent resident status if they are maintaining lawful immigration status at the time their priority date becomes current, or if they are protected by Section 245(i) of the Immigration and Nationality Act. A person is protected by Section 245(i) if a qualifying petition or labor certification was filed for them prior to April 30, 2001. Also, in some instances, a person may be protected based on a qualifying petition or labor certification that was filed for their parents prior to April 30, 2001.
Throughout the U.S.’ history, foreign workers have made significant contributions. The present time is no different as foreign born citizens comprise a large part of the workforce. Despite the large number of immigrants, though, obtaining a green card through employment is one of the most complex areas of U.S. immigration law. There are many procedural steps that must be closely followed to successfully immigrate to the U.S., and even the slightest mistake can force you to start the process all over from the beginning. For this reason, it is always advisable for aspiring immigrants and their petitioning employers to retain the services of an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law.