Employment-based immigration is a complex process that may involve a number of government agencies within the United States Department of Labor, a State Department of Labor, the United States Citizenship and Immigration Services (USCIS), and the Department of State (DOS). Various employment-based pathways are available to foreign nationals seeking permanent resident status (a “Green Card”).
Permanent labor certification by the United States Department of Labor (DOL) is required for certain employer-sponsored permanent residence (green card) applications. In its application for permanent labor certification, an employer must prove that there are no available, willing, and able U.S. workers to fill the job position and that the employment will not adversely affect the wages and working conditions of U.S. workers similarly employed. In addition, the employer must comply with the procedural requirements set forth in the regulations.
The DOL issues labor certifications for foreign nationals based on strict criteria. These criteria are established to:
- Protect the rights of foreign workers.
- Protect the rights of similarly qualified U.S. workers.
- Create opportunities for employers to hire qualified foreign labor if that labor cannot effectively be obtained in the United States.
Pursuant to a regulation change in 2004, employers who file for labor certification on or after March 28, 2005 now go through what is commonly referred to as the PERM process (PERM stands for “Program Electronic Review Management”). The PERM system is an attestation and audit system through which the government can electronically receive and process labor certification applications. If the DOL certifies the labor certification application, the employer and foreign national can continue the permanent residency (green card) process with the submission of the appropriate applications to USCIS.
Due to the shortage of registered nurses and physical therapists in the United States, the Department of Labor has designated these occupations under “Schedule A” for an expedited path to permanent residence. Schedule A is a list of pre-certified occupations for which the Secretary of the Department of Labor previously has determined that there are an insufficient number of U.S. workers who are able, willing, qualified and available, and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of foreign workers in such occupations. These occupations do not require the recruitment process normally required for labor certification.
Foreign nurses can either pass the National Council Licensure Exam (NCLEX-RN) and be licensed in accordance with state licensure requirements or be certified through the CGFNS certification program.Physical therapist foreign nationals must possess the equivalent of a four-year U.S. degree and can be credentialed by the Foreign Credentialing Commission on Physical Therapy (FCCPT).
Employment Based Immigrant Visas
The following are the five preference categories (classes) of employment-based immigrant visas:
The EB-1 preference class includes individuals of “sustained national or international acclaim” with “extraordinary ability” in the sciences, arts, education, business or athletics; “outstanding professors and researchers” recognized internationally in a specific academic area; and “certain multinational executives and managers.” Foreign nationals holding O-1 or L-1 nonimmigrant visa status often qualify for immigrant status under this category.
The EB-2 preference class includes members of the professions holding advanced degrees and foreign nationals who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests or welfare of the United States. To qualify as a member of the professions, the applicant must hold an advanced degree or its equivalent (that is, any degree above that of baccalaureate or a baccalaureate degree with at least five (5) years of progressive experience in the specialty). If the profession requires a degree higher than a Master’s degree, the alien must possess that degree.
The EB-3 preference class includes skilled workers, professionals, and “other workers.” Skilled worker positions require a minimum of two (2) years of training or experience. Professionals must hold a baccalaureate degree (or foreign equivalent) in the field and must establish that a baccalaureate degree is the normal requirement for entry into the profession.
The “other workers” (unskilled workers) category includes positions that require less than two (2) years of training or experience.
Within this preference class, professionals and skilled workers are categorized separately from other (unskilled) workers for purposes of the allotment of available visa numbers.
The EB-4 preference class includes religious workers, certain long time employees of the U.S. government, and citizens of Iraq or Afghanistan that have worked for the U.S. Armed Forces as a translator for at least one (1) year.
The EB-5 preference class allows certain foreign investors to qualify for permanent residence. The EB-5 immigrant investor visa program was established to create U.S. jobs by attracting foreign capital to the United States. The basic requirements for this program are an investment of $1 million dollars (or $500,000 in a high unemployment or rural area) in a commercial enterprise that will create full-time employment for at least ten (10) workers. The investor may also choose to invest in a pre-approved “regional center.”