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Geen Card for Employment-Based Immigrants

Hereunder is your Comprehensive U.S. immigration category instruction and application guide:

U.S. immigration law provides aliens with a variety of ways to become lawful permanent residents (get a
Green Card) through employment in the United States. These employment-based (EB) “preference
immigrant” categories include:

First preference (EB-1) – priority workers

Aliens with extraordinary ability in the sciences, arts, education, business, or athletics. Outstanding
professors and researchers; or Certain multinational managers and executives. Second preference (EB-2)
– aliens who are members of the professions holding advanced degrees or who have exceptional ability
(including requests for national interest waivers). Third preference (EB-3) – skilled workers,
professionals, or other workers.

This page provides specific information for aliens in the United States who want to apply for lawful
permanent resident status in the EB-1, EB-2, and EB-3 categories while in the United States. This is called
“adjustment of status.” You should also read the Instructions for Form I-485, Application to Register
Permanent Residence or Adjust Status before you apply.

For more information on other types of employment-based immigrants, please see the
website on Green Cards for EB-4 special immigrants (for example, religious workers and special
immigrant juveniles) and EB-5 immigrant investors.

The employment-based green card process is a multi-step process that allows foreign nationals to live
and work permanently in the U.S. The process can be complicated and lengthy, but for those seeking
permanent residency in the U.S., it is an essential step to achieving that goal. In this article, we will go
through the steps of the employment-based green card process in detail.

Step 1: PERM/Labor Certification

The PERM/Labor Certification process is usually the first step in the employment-based green card
process. The process is designed to ensure that there are no qualified U.S. workers available for the
position and that the foreign worker will not negatively impact the wages and working conditions of U.S.

Submit the Prevailing Wage Application

The employer begins the PERM process by drafting the job description for the sponsored position. Once
the job details are finalized, a prevailing wage application is submitted to the Department of Labor
(DOL). The prevailing wage rate is defined as the average wage paid to similarly employed workers in a
specific occupation in intended employment. The DOL issues a Prevailing Wage Determination (PWD)
based on the specific position, job duties, requirements for the position, the area of intended
employment, travel requirements (if any), among other things. The prevailing wage is the rate the
employer must at least offer the permanent position at. It is also the rate that must be paid to the employee once the green card is received. Current processing times for prevailing wage applications are
6 to 7 months.

Conduct the Recruitment Process

PERM regulations require a sponsoring employer to test the U.S. labor market through various
recruitment methods for “able, willing, qualified, and available” U.S. workers. Generally, the employer
has 2 options when deciding when to begin the recruitment process. The employer can begin
advertising (1) while the prevailing wage application is pending or (2) after the PWD is issued.

All PERM applications, whether for a professional or non-professional occupation, require the following
recruitment efforts:

30-day job order with the State Workforce Agency serving the area of intended employment; Two
Sunday print advertisements in a newspaper of general circulation in intended employment, most
appropriate to the occupation and most likely to bring responses from able, willing, qualified, and
available U.S. workers; and Notice of Filing to be posted at the job site for a period of 10 consecutive
business days. In addition to the mandatory recruitment mentioned above, the DOL requires 3
additional recruitment efforts to be posted. The employer must choose 3 of the following:

Job Fairs:
Employer’s company website
Job search website
On-Campus recruiting
Trade or professional organization
Private employment firms
Employee referral program
Campus placement office
Local or ethnic newspaper; and Radio or TV advertisement

During the recruitment process, the employer may be reviewing resumes and conducting interviews of
U.S. workers. The employer must keep detailed records of their recruitment efforts, including the
number of U.S. workers who applied for the position, the number who were interviewed, and the
reasons why they were not hired.

Submit the PERM/Labor Certification Application

After the PWD is issued and recruitment is complete, the employer can submit the PERM application if
no qualified U.S. workers were found. Currently the DOL is taking 8 to 9 months to process PERM
applications after submission. The day the PERM application is filed establishes the beneficiary’s priority
date and determines his/her place in line in the green card visa queue.

Respond to PERM/Labor Certification Audit (if any)

An employer is not required to submit supporting documentation when a PERM application is filed.
Therefore, the DOL implements a quality control process in the form of audits to ensure compliance
with all PERM regulations. In the event of an audit, the DOL typically requires:

Evidence of all recruitment efforts undertaken (copies of advertisements placed and Notice of Filing);
Copies of applicants’ resumes and completed employment applications; and A recruitment report signed
by the employer describing the recruitment steps undertaken and the results achieved, the number of
hires, and, if applicable, the number of U.S. applicants rejected, summarized by the specific lawful job-
related reasons for such rejections. If an audit is issued on a case, 3 to 4 months are added to the total
processing time of the PERM application.

Receive the Approved PERM/Labor Certification

If the PERM application is approved, the employer will receive it from the DOL. The approved
PERM/Labor Certification confirms that there are no qualified U.S. workers available for the position and
that the beneficiary will not negatively impact the wages and working conditions of U.S. workers.

Step 2: I-140 Immigrant Petition

Once the PERM application has been approved, the next step is to file an I-140 immigrant petition with
U.S. Citizenship and Immigration Services (USCIS). The petition must include the approved PERM
application and evidence of the beneficiary’s qualifications for the sponsored position. Please note,
depending on the preference category and country of birth, a beneficiary may be eligible to file the I-140
immigrant petition and the I-485 adjustment of status application concurrently if his/her priority date is

At the I-140 petition stage, the employer must also demonstrate its ability to pay the beneficiary the
proffered wage from the time the PERM application is filed to the time the green card is issued. There
are 3 ways to demonstrate ability to pay: Evidence that the wage paid to the beneficiary is equal to or
greater than the proffered wage (pay-stubs, W-2s); Evidence that the company’s net income is equal to
or greater than the proffered wage (annual report, tax return, or audited financial statement); OR
Evidence that the company’s net assets are equal to or greater than the proffered wage (annual report,
tax return, or audited financial statement).

In addition, it is at this stage that the employer will choose the employment-based preference category
for the sponsored position. The category depends on the minimum requirements for the position that
was listed on the PERM application and the employee’s qualifications. After the I-140 petition is filed,
USCIS will review it and may request additional information or documentation by issuing a Request for
Evidence (RFE).

Step 3: Green Card Application

Once the I-140 immigrant petition is approved, the beneficiary will check the Visa Bulletin to determine
if there is an available green card. The actual green card application can only be filed if the beneficiary’s
priority date is current, meaning a green card is immediately available to the beneficiary.

Every month, the Department of State publishes the Visa Bulletin, which summarizes the availability of
immigrant visa (green card) numbers and indicates when a green card has become available to an
applicant based on their preference category, country of birth, and priority date. The date the PERM
application is filed establishes the beneficiary’s priority date. In the employment-based immigration
system, Congress set a limit on the number of green cards that can be issued each year. That limit is
currently 140,000. This means that in any given year, the maximum number of green cards that can be issued to employment-based applicants and their dependents is 140,000. Once the beneficiary’s priority date is current, he/she will either go through adjustment of status or consular processing to receive the green card.

Adjustment of Status

Adjustment of status involves applying for the green card while in the U.S. After an adjustment of status
application is filed (Form I-485), the beneficiary is notified to appear at an Application Support Center
for biometrics collection, which usually involves having his/her picture and signature taken and being
fingerprinted. This information will be used to conduct required security checks and for eventual
creation of a green card, employment authorization (work permit) or advance parole document. The
beneficiary may be notified of the date, time, and location for an interview at a USCIS office to answer
questions under oath or affirmation regarding his/her application. Not all applications require an
interview. USCIS officials will review the beneficiary’s case to determine if it meets one of the
exceptions. If the interview is successful and USCIS approves the application, the beneficiary will receive
the green card.

Consular Processing

Consular processing involves applying for the green card at a U.S. consulate in the beneficiary’s home
country. The consular office sets up an appointment for the beneficiary’s interview when his/her priority
date becomes current. If the consular officer grants the immigrant visa, the beneficiary is given a Visa
Packet. The beneficiary will pay a USCIS Immigrant Fee which is used by USCIS to process the Visa Packet
and produce the green card. The beneficiary will present the Visa Packet to the U.S. Customs and Border
Protection (CPB) officer at the port of entry. The CBP officer will inspect and determine whether to
admit the beneficiary into the U.S. If admitted, the beneficiary will receive the green card in the mail.
The green card serves as proof of permanent residency in the U.S. and allows the individual to live and
work in the U.S.

Because the U.S. immigration system can be tricky to navigate, it is always best to contact a qualified
immigration attorney to help come up with the proper solution for each individual case.

We are here to help.

To learn more about your potential legal options, have questions or to schedule a consultations contact us today – it’s free and strictly confidential.

(770) 936-3991
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