Published January 3, 2021
By Richard Hanus, Esq.
After family based immigration, the next most popular avenue to live and work in the U.S. on a permanent basis is the “green card” by way of a job or job talents. Most employment based paths to lawful permanent resident (green card) status, require a financially viable employer to offer the foreign national a job and where U.S. workers are unavailable to fill the role. Other job based green card processes do not require a test of the job market, and some require no actual job offer.
In most cases, the first requirement is having an employer with a solid financial foundation looking to staff a hard to fill position. Just as important, the foreign national, with some exceptions, must bring to the job the required experience or credentials. From there, the employer is required to embark on a test of the labor market, where recruitment efforts are commenced to determine whether ready, willing and able U.S. workers are available to fill the position. At the very least the recruitment exercise include ads in a newspaper of general circulation and posting a notice in the workplace. For more sophisticated positions, the required recruitment involves additional steps.
Each year foreign nationals compete for one of the 140,000 employment based green cards available. Most of these green cards are issued in the Employment Based 2nd and 3rd preference categories, which include university educated individuals, “skilled” workers, and “unskilled” workers. These processes typically require a test of the labor market, and with a time frame ranging anywhere from 18 months to 4 years from start to finish. Factors impacting this timeline include prevailing Department of Labor processing times, whether the parties pay additional “premium processing” filing fees to expedite their case and whether the foreign national is from a high demand country and subject to the longer visa lines (e.g. India, China, the Philippines).
Employment based filings that do not require a test of the labor market and proving the unavailability of U.S. workers include those for: 1) EB-1 individuals of “extraordinary ability”, who are at the top of their field, having achieved national or even international acclaim for their talents 2) executives and managers of multinational companies being transferred to the U.S. after similar positions overseas for at least a year (EB-1), 3) “outstanding” researchers and professors (EB-1), 4) individuals of “exceptional ability”, or with advanced degrees, with the potential to make contributions of a wide impact and in our “national interest” and 5) registered nurses and physical therapists. Filings in categories 1 and 4 above in most cases can be initiated by the foreign national and with little or no employer involvement, although substantial supporting evidence must accompany the filing.
A job based immigration strategy also involves a decision of where the final stage of green card processing will take place. The choice will be between the U.S., by way of an application for adjustment of status OR at an overseas U.S. consular post by way of application for an immigrant visa. The latter usually involves workers who may otherwise not have an avenue to enter the U.S. on a temporary visa, or who have already exhausted their period of authorized stay in the U.S.
Given the multitude of variables at play when it comes to formulating an immigration strategy premised on a job or job talents, the first step in the process is making sure experienced immigration law counsel is involved. Richard Hanus of the Law Offices of Richard Hanus has 25+ years experience representing employers and their foreign national employees and is thus well positioned to maximize the chances of success of any job based green card process.
PUBLISHED January 3, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois
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