By: Ryan M. Helgeson, Esq.
The need for careful compliance with work authorization rules has never been greater. Given the government's renewed emphasis on enforcement of laws prohibiting employment of unauthorized workers and increased criminal prosecutions of businesses and owners, it is vital that employers understand what the immigration compliance regulations require.
Often foreign national employees (or candidates for open positions) will want the employer to sponsor them for their green card. What does this mean for the business? What steps are involved? This article aims to provide a very brief overview of the process.
What Type of Employee Do I Have? - Employment Preference Categories
Approximately 140,000 employment-based visas are available each year for qualified aliens. The visas are issued through a preference system consisting of five categories. The first preference category is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. These individuals must be among the best in their respective field to qualify.
The second preference category is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
The third preference category is reserved for professionals, skilled workers, and other workers. Most available employment opportunities fall into the second and third preference categories.
The fourth preference category is reserved for "special immigrants," which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.
Finally, the fifth preference category is the so-called "investor visa." This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Recruitment Required - the PERM Labor Certification Process
For most second and third preference positions, the employer is required to conduct a detailed recruitment effort. This is referred to as the "PERM" process and is where most green card applications begin. A PERM application cannot be filed without first conducting a good-faith recruitment effort to identify any U.S. workers who are able, willing, qualified, and available for this position. If an able, willing, qualified, and available U.S. worker is identified, the PERM regulations do not require you to hire that person, but the PERM application cannot be filed. If no able, willing, qualified, and available U.S. worker is identified through good-faith recruitment, you can file the PERM application.
The PERM rules are very specific about the recruitment methods that a company must follow before being able to file an application. The results of the recruitment efforts are submitted to the Department of Labor for certification. The DOL labor certification verifies the following:
- There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage.
- Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The Final Step - the "Green Card" for Your Employee
Upon approval of the labor certification, the employer must file an "Immigrant Petition for Alien Worker" on behalf of their desired employee. The approval date of the PERM will establish the employee's "Priority Date." The Priority Date determines the alien's place in line to apply for a green card. The approved PERM application is filed as part of the Immigrant Petition for Alien Worker.
Once the Immigrant Petition is approved, the alien worker will be eligible to file for adjustment of status once her priority date is current. This is the actual "green card" application and uses a separate form and process. The adjustment of status application is filed by the foreign national, not the employer. How long the employee has to wait to file for adjustment of status depends upon the preference category and the alien's home country. Individuals from China, India, Mexico, and the Philippines face the longest wait for their priority dates to become current. Generally, an employee's non-immigrant visas can be renewed while waiting for the priority date to become current.
If your business is considering sponsoring an individual for their green card, consultation with an immigration attorney is recommended to understand all of the details and requirements of the lengthy process. If you have questions regarding employment-based immigrant petitions or any other employment immigration question, please contact Attorney Ryan Helgeson at (630) 377-1554 or at firstname.lastname@example.org.