Context: After Foreign Labor Certification
After the DOL approves your foreign labor certification application, your employer should file an I-140 immigration petition with the USCIS within 180 days of approval of your labor certification.
Once the USCIS approves your I-140, you can either:
Apply for an employment-based immigration visa at a US embassy or consulate overseas; or
File Form I-485 to adjust your immigration status to permanent resident.
Which of the above options you select depends on whether you are inside or outside the US at the time of filing.
EB-2 status offers an immigrant visa and a green card, but it is one of the most difficult US immigration statuses to obtain. The three pathways for obtaining permanent residence through EB-2 status are (i) qualifying as an “advanced degree professional”, (ii) possessing “exceptional ability”, or (iii) obtaining a National Interest Waiver.
“Advanced degree professional”
Normally, this pathway requires you to have earned an advanced degree, such as a master’s degree or a Ph.D. The job you are taking must require this qualification as well. In some cases it is OK for you to possess a bachelor’s degree plus five years of “progressive” work experience As usual, foreign equivalent degrees can qualify.
Although this is an inherently subjective determination, you must be able to show exceptional ability in science, art, or business that is beneficial to the US economy, culture, or educational system. Your ability must be, well beyond the level of ability that is normally encountered in your field.
National Interest Waiver
You may be granted a National Interest Waiver if your residence and employment in the United States will benefit the US enough to justify waiving the normal labor certification program requirement and granting you permanent residence directly. You don’t necessarily need an advanced degree or exceptional ability to qualify for a National Interest Waiver, because the determination is highly subjective.
You can obtain an employment-based immigrant visa using any of the three above-described pathways.
EB-3 status offers an immigrant visa and a green card to certain skilled workers, professionals, and unskilled workers. These terms are defined as follows:
- “Skilled workers” are workers whose jobs require at least two years of experience or training to perform–in other words, they are not entry-level positions. Additionally, the job cannot be temporary or seasonal, as certain agricultural jobs are. Certain types of post-secondary education can be treated as “training” for the purpose of qualifying under EB-3 status.
- “Professionals” are workers whose positions require at least a bachelor’s degree or its foreign equivalent.
- The “unskilled workers” subcategory is for workers performing labor that requires less than two years of experience or training and is not seasonal or temporary. There is a cap of only 10,000 visas per year, meaning that applicants may have to wait years before their priority date arrives and allows them to obtain a visa.
How Our Immigration Attorneys Can Help You Obtain PERM Labor Certification
Numerous pitfalls await those who attempt to secure labor certification without the assistance of an experienced immigration attorney. Detailing your recruitment efforts is a particularly tricky matter that depends on many factors, including shifting political winds. Following are some tasks for which the assistance of an immigration attorney would be a good idea:
- Stating the job requirements. You will need to consult with your attorney and let them help you draft this statement.
- Determining whether further recruitment is necessary if the decision to recruit a foreign employee took place only after significant domestic recruitment efforts for the position occurred.
- Responding to an audit. Audits can be expensive and time-consuming. When responding to an audit, every sentence has consequences, some of which may not be at all obvious.
Keep in mind that no attorney should be directly involved in designing or executing the recruitment process because this would cast doubt that the entire process might have been rigged. It might even trigger an audit.