Employment-Based Permanent Residency – Immigrant Visa Petition

For some individuals the Immigrant Visa Petition is the first step towards obtaining Lawful Permanent Residence in the United States.  For others, and the majority, this is the second step.  See our previous posts about Employment-Based Permanent Residency: Employment-Based Permanent Residence For “Professionals” And Those With “Advanced Degrees” and Employment-Based Permanent Residency, Can You Sponsor Your “Skilled” Or “Other Worker”?

Regardless, Form I-140 is the Immigrant Visa Petition for Alien Worker that is used by employers to request an Immigrant Visa for an employee. This step requests that the U.S. Citizenship and Immigration Services (USCIS) consider the request and approve the visa. It is the next step through which individuals have the Immigrant Visa issued and become a permanent resident.

There are effectively three employment-based categories that use this form:

• Employment-Based First Preference is reserved for the highest priority workers including those foreign nationals with extraordinary ability (think Nobel Prize winners and Olympic athletes), outstanding professors and researchers, or multinational executives and managers.
• Employment-Based Second preference foreign nationals include members of the professions with advanced degrees, both seeking National Interest Waivers and those who are not.
• Employment-Based Third Preference includes professionals (those with the minimum of a bachelor’s degree education), skilled workers (requiring at least two years of specialized training or experience), and other workers (requiring less than two years’ experience or training).

As the prerequisites for the categories go down, the number of individuals who qualify for the category goes up.  The result is that individuals in the Third Preference category can experience much longer waits to move to the next step in permanent residency processing.

There are a few basic tenants to the review and approval of the Immigrant Visa.  Generally, an employer must sponsor their employee for the Immigrant Visa.  Through this sponsorship, the employer is notifying the U.S. government that it has a position that will be filled by the individual sponsored.  The employer will provide a ‘prevailing wage’ and certify that it has had and continues to have the ability to pay the prevailing wage to the individual.  For positions which must go through the Labor Certification / PERM process – Employment-based Third Preference and some Second Preference – the petition must establish that the Labor Certification has been issued by the U.S. Dept. of Labor and that the employee meets the qualifications for the position as certified. Alternatively, the employee must demonstrate that it meets the regulatory and statutory requirements for approval in the category sought.  In the end, a petition that meets with each of these requirements is likely to be approved.

It would seem that the hard work is done, but as previously mentioned there is another step left to be completed.  Depending upon the category of the Immigrant Visa Petition, the employees country of birth, the priority date of the Immigrant Visa, and the physical location of the employee an Application to Adjust Status to Permanent Resident may be lodged for employees present in the United States in a valid nonimmigrant status or the matter will move to the National Visa Center for the Consular Processing of the Immigrant Visa.

If you want to know if you are eligible to file an Immigrant Visa Petition or just have questions about options that may be available for you as an employer or employee, please contact our office to set a consultation.   Please check back for future posts about employment-based immigration options and processing!