Frequently Asked Questions: Employment Based Immigration
These are the most frequently asked questions that we see.
What is employment based immigration?The immigration laws of the United States provide for three principal avenues by which people abroad may apply to immigrate to the United States. These are the employment ("EB") based category, the family ("FB") based category, and the diversity ("DV") visa program. The employment based category is further divided into many subcategories, of which the first three are of principal importance: First: Priority Workers ("multinational executives and managers;" "aliens of extraordinary ability;" and, "outstanding researchers and professors"): 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers."
What is a PERM?PERM is what they Department of Labor calls their foreign labor certification program. It is an application that is filed with the DOL for a certification that no qualified U.S. workers are available for a specific job with a specific employer. A PERM is required for most employment based second (EB2) preference and all third (EB3) preference petitions.
Can I sponsor myself for a PERM?No. The PERM job offer must be from an independent third party. Prospective immigrants are not allowed to sponsor themselves for PERMs. Similarly, PERM job offers from family members are not permitted.
How long does it take to get a PERM approved?PERM processing times can vary widely, depending upon the current policies of the DOL. In their notice of rulemaking for the PERM regulations, they estimated that PERMs would be processed in 45 to 60 days. In the past, we have seen them processed as quickly as one week and we have seen them take as long as 15 months. Right now, processing is about four months from the time the PERM is filed until it is approved or goes to audit.
How quickly can a PERM be filed?Before a PERM can be filed, the employer must first obtain a prevailing wage determination (PWD) from the Department of Labor. This generally takes about 45 days from the time it is filed until it is issued. Once the PWD has been issued, the employer must then engage in recruiting to demonstrate that there are no qualified U.S. workers available. The minimum recruiting interval is 60 days. An employer should count on at least three and a half months of work before being able to file a PERM application.
Do all EB petitions require PERMs?No. None of the EB1 petitions require PERMs. Similarly, the EB2 national interest waiver category does not require a PERM, nor do Schedule A petitions. These petitions all have different requirements in place of the PERM requirement.
How quickly can I file for a green card after my I-140 is approved?If your priority date is "current" you may file a concurrent I-140/I-485 package. If it is not current, you must file the I-140 and then wait until it becomes current before you are allowed to file an application for adjustment of status or a consular immigrant visa application. How long depends upon your preference classification, priority date, and country of charge.
My priority date is current, but my PERM hasn't been approved yet. Can I file for AOS?No. While it is possible to file a concurrent I-140/I-485 package if the priority date is current, it is not possible to do this until the PERM has been approved.
What exactly is included in the EB1 Category?Within this preference there are three subgroups: Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the CIS, rather than through an employer;
Outstanding professors and researchers with at least three years' experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS; and
Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS.
What exactly is included in the EB2 Category?All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for a waiver of the job offer because they are doing work that substantially advances the national interest. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:
Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.
What exactly is included in the EB3 Category?All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation. There are three subgroups within this category: Skilled workers are persons capable of performing a job requiring at least two years' training or experience;
Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and Other workers are those persons capable of filling positions requiring less than two years' training or experience.
Do all EB categories require labor certification?No they do not. None of the first preference ("EB1") subcategories require labor certification at all. In the second ("EB2") preference, labor certification is required unless the petitioner can show that the beneficiary's work is of such significance that the job offer (and labor certification) should be waived "in the national interest." All of the third preference ("EB3") subcategories require labor certification.
If my category doesn't require labor certification, can I change employers while I am applying for immigration status?It depends on the sub-category and the USCIS office involved. In the EB1 sub-category, two of the three ("multinational executives and managers" and "outstanding researchers and professors") are entirely employer dependent. Changing jobs in one of these categories will result in the immigrant preference petition being automatically voided. The third qualifying category ("alien of extraordinary ability") is employer independent and it does not matter if the applicant changes jobs in the middle of the process. All categories requiring labor certification also require the applicant to remain with the sponsoring employer. If the employee leaves, then the labor certification is automatically voided and the employee is no longer entitled to immigration benefits.
The one area that is in a state of uncertainty right now is the "national interest waiver" ("NIW") classification. The statute (law) explicitly states that an NIW petition approval can only be made where the USCIS waives the entire job offer - not just the labor certification - in "the national interest." Logically, it would seem that if the job offer is waived, it would not matter if the employee changes employers (but remains in the same field of work) while immigration is pending. Some USCIS service centers take the positions that a self-petitioned NIW beneficiary may change employers, while an employer-petitioned beneficiary may not. This is a rapidly changing situation and anyone in this classification needs to examine the most recent policies carefully before acting.
Having said all that, the American Competitiveness in the Twenty First Century Act, amended the law in 2000 to allow a worker to change jobs or employers if the following conditions have all been met:
1. An application for adjustment of status has been filed by the worker;
2. The application has remained unadjudicated for more than 180 days; and,
3. The worker's new job is in the "same or a similar occupational classification"
How soon can I leave my job after immigrating?This is perhaps the single most common question asked in this area. The answer is that there is no specific answer to it. The theory behind the labor certification process is that it is designed to allow American employers to sponsor employees who have skills that are in short supply. Because this is a large country, with vastly different employment situations in different parts of the country, the labor certification program is highly specific to the job site where the alien worker will be employed. The employer must prove that the sponsored employee will earn a salary that meets or exceeds the average salary for similarly qualified U.S. workers in the same area. Also, the employer must prove that there are no similarly qualified U.S. workers, in the local area, who are available and willing to accept the employer's job offer. For these and other reasons, a labor certification is not transferable to another employer.
When someone immigrates to the U.S. in a category that requires labor certification, both the employer and employee must make good faith representations that the job offer still exists and that the employee will work for the employer "indefinitely" after immigration to the U.S. The term "indefinitely" in this context means that neither side has any current plans to end the employer-employee relationship.
This is not a permanent employment contract and the employer may terminate the employee for any reason. Similarly, the employee may also leave the job for any reason.
If there is a clearly valid reason for the termination, such as the employer's business took an unexpected downturn and the employer had to lay off workers, then there should never be a problem. Similarly, if there are problems between the employer and the employee that lead to an impossible situation, the government will probably understand. Unfortunately, too many people view the process as a simple "paper requirement" rather than what it was intended to do: provided American employers with workers who have skills that are in short supply.
The recent changes in the law made by the AC21 legislation have clearly had an impact on this issue. It now seems certain that any adjustment applicant who changes jobs after his or her application has been pending for more than 180 days (and who otherwise qualifies for "I-140 portability") is in the clear.
Similarly, based on the legislative history of the AC21 legislation, it would seem that a consular processing immigrant who at least reports for work following his or her entry into the U.S. as an immigrant would also be free to leave immediately. The bigger issue is not the timing of the departure, but whether the new immigrant expressed fraudulent intent when immigrating. As long as there is any reasonable basis for changing jobs after the acquisition of immigrant status, it looks as though there won't be any problems later.
The most common instances where this issue comes to the attention of the USCIS are situations where that agency must review the employee's file, such as in the context of an application for a reentry permit, or an application for naturalization. In other cases, the employer may complain to the USCIS that a sponsored employee left the job shortly after immigration. The penalties in these cases can include rescission of employee's immigrant status and possibly even a lifetime ban on reentering the U.S.