Employment Based Residency Petition

As a Rhode island K-1 Visa Attorney, James Howe has an in depth understanding of the Immigration and Naturalization Process.

Permanent residency petition for an employee, provided that it can be demonstrated through a labor certification process (except for first preference aliens and national interest waivers) that:

The alien employee will not be taking any jobs from U.S. citizens, and
The salary and conditions of the job offered are the prevailing in the industry and location and therefore will not negatively impact the wages and labor conditions for U.S. citizens.
There are several preference categories for this visa which get processed in order of preference:

EB-1 - The First Preference includes:

Aliens of Extraordinary Ability in the sciences, arts, education, business, or athletics; such as outstanding researchers, professors, artists, executives, athletes, etc.
Candidates in the first preference can petition for permanent residency without a sponsor and without going through the lengthy labor certification process.
EB-2- The Second Preference includes:

Aliens holding advanced degrees or with exceptional training and ability.
Qualified alien physicians who will practice medicine in underserved areas of the U.S.
More information on the National Interest Waiver for Physicians in Underserved Areas
If the alien can demonstrate that his/her residency is in the national interest of the U.S., a national interest waiver may be obtained, waiving the job offer and LCA requirements.

EB-3- The Third Preference includes:

Professionals (with a minimum of a bachelor degree or its foreign equivalent)
Skilled workers (workers with at least two years of training or experience performing skilled labor), and
"Other workers" (all other workers that are not professional or skilled). These workers usually experience longer waiting periods in the residency quota lines.
EB-4- The Fourth Preference-Special immigrants & religious workers includes:

Religious workers
Border commuters
Retired employees of international organizations
Returning residents
Employees and former employees of the U.S. government abroad
EB-5- The Fifth Preference-Employment creation investors includes:

Investors in new companies employing 10 or more workers, investing at least $500,000 in "targeted employment areas" (area s with unemployment of at least 150% of the national average).
Investors in new companies employing 10 or more workers, investing at least $1,000,000 in any location.
There are only 10,000 visas per year for this preference category, 3,000 of which at least have to be assigned for investors in targeted employment areas.

To be eligible for an Employment Based Residency, the foreign alien beneficiary must meet all of the criteria in one of the three following categories:

Category I:

Must be living in the U.S. on or before December 18, 2000 (According to the former INA §245(i) law. Currently there are more than one proposed amendment to this statute which impose different statutory date limitations for filing. Therefore it is advisable to initiate this procedure as soon as possible if the requirements are fulfilled).
Must have never left the U.S. without permission of the US Immigration Service
Must have an offer of employment from a U.S. employer, who has agreed to sponsor the beneficiary for the residency
Must receive a salary equal to or above the prevailing wage offered for such a position in the State in which the job will be performed
Must have the sponsorship of a U.S. employer
Category II:

Must be lawfully present in the U.S. on a current nonimmigrant visa
Must not have violated conditions of nonimmigrant visa
Category III:

Must be residing outside the U.S.
Must not have been previously deported or removed from the U.S.
Must not be subject to an order of removal, exclusion, or deportation

Once permanent residency is approved it will remain valid as long as the person continues to reside the majority of the time in the U.S. and complies with the legal conditions for permanent residency.

Your residency status never expires as long as you continue to meet the residency eligibility conditions as stated in your residency application. However, the green card (or evidence of permanent residency) expires every 10 years and it is recommended that it be renewed six months before expiration.

The immediate family of the applicant is eligible to obtain permanent residency with all its benefits, at the same time the applicant receives it, if they are included in the petition at the time of making the adjustment of status. Permanent residency allows all family members to legally live, study and or work in the U.S..

Birth certificate of all beneficiaries
Copy of passport
Copy of I-94 form (if alien is already in the U.S. and for family members already in U.S.)
Copy of alien's last three years of tax returns
Alien's resume
Copies of alien's educational certificates and diplomas
Letters of recommendation from:

Present employer
Previous employer's)
Previous instructors/professors (if possible)
A complete job description including, duties and responsibilities as well as minimum experience and education required for position
A letter of employment from sponsor including position and salary offered
Sponsor employer's information:

Address, telephone, and fax numbers
Tax ID number
Name and title of direct supervisor
Number of employees
Description of recruitment efforts to date
Description of business and start date of the business
Any other information available on the business such as marketing brochures, sales presentations, web site, etc.
Marriage certificate (if applicable)
Divorce certificate (if applicable)

There are three major stages to the employment based residency process:

Stage One:
Approval by the Department of Employment at the State level including:

Prevailing Wage
Form ETA 750 A & B & Form G-28
Job Description & Offer of Employment
Advertisement from Newspaper (generally $350.00-$650.00)
The state Department of Employment will review the case and determine whether the beneficiary has the skills and ability to perform the job and whether the pay is fair. Once the case is approved it will be filed with the U.S. Dept. of Labor.

This stage takes approximately 6-12 months depending on the preference level of employee and the volume at the specific department of employment

Stage Two:
Approval by the Department of Labor at the Federal level including:

ETA 750 A
ETA 750 B
Approval notification from Department of Employment

The U.S. Dept. of Labor will review the state Department of Employment approval and will determine whether the petitioner's employment will have a negative impact on American workers nationwide. Once the case is approved here, it gets filed with the appropriate US Immigration Service Center.

This stage takes approximately 3-8 months depending on the preference level of employee and the volume of work at the Department of Labor at the time the case is transferred there.

Stage Three:
Approval at the US Immigration Service Service Center, including:
Approval from the State Department of Employment & Approval from U.S. Department of Labor
Form I-140, I-485, and medical exam results, work authorization application filed with the US Immigration Service Service Center with appropriate filing fees (click here for
the US Immigration Service fee schedule)
Once the case is approved by the appropriate US Immigration Service Service Center, the green card is issued and sent to the beneficiary.
This stage takes approximately 300 days depending on the preference level of employee and the volume of work at the specific US Immigration Service service center at the time the case is filed there.

For more information regarding Immigration Law
Click here: Immigration Law - Frequently Asked Questions