Employment-based Permanent Residency Applications
Applying for Permanent Residency from Within the U.S.
Some nonimmigrant statuses, such as H-1 specialty occupations and L-1 intracompany transferees, permit aliens holding those statuses to have immigrant intent. Those statuses are said to allow dual intent.
Other nonimmigrant statuses, such as R-1 religious workers and TN Trade NAFTA professionals, do not specifically allow dual intent, but neither do they specifically prohibit aliens holding those statuses from applying for permanent residency.
Aliens currently in the United States in E, F-1, H-1, J-1, L-1, M-1, O-1, P, Q, R-1, or TN status may apply for permanent residency while they are in the U.S. as nonimmigrants. Aliens who are outside the U.S. may also apply for permanent residency and enter the U.S. on an immigrant visa.
Application Procedure
There are several steps involved in making an application for permanent residency. Depending on the employment-based immigrant category into which an alien falls because of his job duties, the steps through which he must pass in order to obtain permanent residency vary.
Employment-based Immigrant Categories
Section 203 of the Immigration and Nationality Act divides employment-based immigrants into five categories. The categories are often expressed as “EB1,” “EB2,” and so on, as shorthand for “Employment Based Category One,” “Employment Based Category Two,” etc. They are listed in order of preference:
1. Priority workers (EB1)-
- Aliens with extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
- Outstanding professors or researchers who are recognized internationally as outstanding in a specific academic area and has requisite experience and job offerings; or
- Multinational Executives and Managers who meet the same basic qualifications as an L-1A Manager or Executive.
2. Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability (EB2)-
For aliens who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services are sought by a United States employer.
The Attorney General may waive the job offer requirement for certain aliens when it is in the national interest to do so. Unless this National Interest Waiver is granted, an LC is required.
3.Skilled workers, professionals, or other workers (EB3)-
a. Skilled workers- Qualified immigrants capable of performing skilled labor requiring at least 2 years training or experience, not of a temporary or seasonal nature, for which qualified workers are not available in the United States
b. Professionals- Qualified immigrants who hold baccalaureate degrees and who are members of the professions.
c. Other workers- Other qualified immigrants who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
4.Certain special immigrants (EB4)-
Includes, among other groups, religious workers who would qualify under the R-1 nonimmigrant category and who also have 2 years experience in the occupation.
5.Employment creation (EB5)-
For immigrants qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise in which the alien has invested a certain amount of capital and which will benefit the United States economy and create full-time employment for not fewer people.
Labor Certifications (LC)
Labor Certifications (LC’s) are only required for all aliens applying for permanent residence in the EB3 category and most aliens applying in the EB2 category. Aliens applying in EB1 category would simply start by filing an I-140 petition. Aliens applying in the EB4 category as Religious Workers would begin by filing an I-360 petition. Aliens applying in the EB5 category would file I-526.
An approved LC is a statement from the Department of Labor that there are no able, willing, qualified, and available U.S. workers applying to fill the position offered. U.S. workers include citizens, permanent residents, and anyone authorized to work in the US whose work authorization is not tied to a specific employer. In most labor certifications, the qualified US worker need only meet the minimum qualifications for the position. The exceptions are for teachers at colleges and universities and aliens of exceptional ability in the performing arts, in which the US worker must be as qualified as the alien worker.
The alien’s prospective U.S. employer must file the LC on the alien’s behalf. A properly conducted LC application requires the employer to test the local or national job market by running ads and recording the results of the job search. This documentation must be submitted to the Department of Labor in order to prove that there are no qualified U.S. workers available to fill the position.
Once the LC has been certified, it becomes the property of the employer that filed the application. It may be used for the alien on whose behalf the application was originally filed. However, if the employment relationship with that alien terminates before the alien becomes a permanent resident, then the employer may substitute another alien into the LC so long as the substituted alien met all the requirements of the labor certification at the time the application was filed.
I-140 and I-360 Petition
1. I-140 Petitions
Once a Labor Certification has been approved or, in the case of EB1 aliens, once the alien and her employer are ready to file for permanent residency, the employer/ petitioner must file the I-140 petition at the regional service center having jurisdiction over the place of employment.
The I-140 petition is filed with U.S.C.I.S., a subdivision of the Department of Homeland Security. For EB2’s and EB3’s, this is the second government agency that must approve the job offer prior to the alien’s application for permanent residency. For EB1 Priority Workers, only the U.S.C.I.S. reviews the job offer.
The I-140 is the employer’s declaration to U.S.C.I.S. that it intends to employ the alien indefinitely upon the alien’s obtaining Permanent Resident (“green card”) status in the U.S. The employer must maintain that intent up to the date on which the I-140 is approved in order to for the petition to be approved.
In order to qualify for permanent residency, the alien on whose behalf the I-140 petition is filed must also intend to work for the petitioning employer indefinitely upon the granting of permanent resident status, unless (1) the alien is applying for an I-140 category such as the National Interest Waiver, which allows the alien to petition for himself, and he is in fact self-petitioning; or (2) the alien is applying for adjustment of status, and he uses the portability provisions of AC21 to work for a new employer.
The I-140 must explain the nature of the job being offered and must show that the alien is qualified to fill the position. In order for the I-140 to be approved, it must be clear to U.S.C.I.S. that the job fits the EB category under which it was filed.
I-140 petitions may be concurrently filed with I-485 applications to Adjust Status.
(Note: Adjustment of status is only one of the two ways to obtain permanent residence. The other way is called “consular processing.” One must carefully weigh the pros and cons of Adjustment of Status v. Consular Processing in order to make a well informed decision.)
2. I-360 Petitions
For EB4 Religious workers, the I-360 is filed in lieu of the I-140 petition. The I-360 serves the same purpose as an I-140. The employer is declaring its intent to U.S.C.I.S. that it will continue to employ the alien indefinitely upon the alien’s obtaining Permanent Resident status in the United States.
The I-360 petition must also prove that the employer is offering the alien a position that fits the U.S.C.I.S. definition of a “religious worker,” and that the alien is qualified to fill the position based on requisite experience, calling, and education.
One of the major differences between the I-140 and the I-360 is that I-360 petitions may not be filed concurrently with I-485 adjustment of status applications; the I-485 can only be filed after the I-360 has been approved.
Basic Overview of the Two Paths to Permanent Residence: Adjustment of Status v. Consular Processing
There are two methods that can be used to complete the “green card” or Permanent Residency application process. It can be done either as an Adjustment of Status application through the Department of Homeland Security/ U.S.C.I.S. or as an Immigrant Visa application through a U.S. Consulate abroad. If Adjustment of Status is chosen, the process can be done by mail and the applicant need not depart from the U.S. Adjustment of Status applicants are not ordinarily required to attend an interview before U.S.C.I.S., but interviews may be required in some circumstances. If Consular Processing is chosen, the applicant must attend an interview at the U.S. Consulate in his or her country of nationality or last country of residence abroad. Consular processing requires a personal interview for both the principal applicant and his or her accompanying family members. An in-depth analysis of Consular Processing v. Adjustment of Status is included in our “Articles” section.
