Employment Based Permanent Residence

An Impassioned Pursuit of Both Your Personal & Professional Immigration Goals

If your goal is to permanently immigrate to the United States, one of the most effective ways to do so is to quite literally work your way here. In order to obtain lawful permanent residency in the United States—better known as a “Green Card”—the two most commonly utilized paths are via family-based petitions and employment-based petitions.

There are a variety of employment-based immigration options available, depending on your profession, experience, education, expertise, and numerous other factors. For certain categories, the applicant must have an existing job offer from a qualifying business, while others require investment or extraordinary abilities on the part of the applicant.

When seeking employment-based permanent residence it is important to understand that regulations are strict and residency is based on a set of preference categories. The following breakdown lists which employment-based qualifications and circumstances will allow one to obtain permanent residency in the US:

  • Multinational Manager or Executive – This subcategory applies to individuals who have worked for at least one year out of the last three years in an executive or managerial capacity at a foreign company with a qualifying relationship (parent company, subsidiary, or affiliate) to a US company. The applicant’s petition must be sponsored by the US company, which can be an existing company or a newly formed business. The businesses can be owned by the applicant or part of a larger multinational entity for which the applicant is employed.
  • Extraordinary Ability – Those individuals who have achieved an extraordinary level of expertise and success in various fields such as the sciences, arts, education, business, and athletics also qualify for first preference, employment-based permanent residency. While no offer of employment is required and an applicant may file a petition on his or her own behalf, applicants must demonstrate a level of expertise indicating the applicant is one of that small percentage who has risen to the very top of his or her field of endeavor, and that he or she will be coming to the United States to continue work in the area of expertise.
  • Outstanding Professors and Researchers – To qualify for this preference category you must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years’ experience in teaching or research in that academic area and must be entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university or other institution of higher education.
  • Professionals with advanced degrees – A qualifying advanced degree includes most professional or academic degrees above the US baccalaureate level. Applicants may also qualify for this category with a bachelor’s degree plus five years of progressive work experience in their field.
  • Aliens of “Exceptional Ability” -This second preference subcategory specifically applies to those with exceptional abilities in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” The criteria for this preference category include the following:
  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.
  • Note: Both second preference categories generally require an offer of employment and a labor certification from the US Department of Labor certifying that no qualified US workers are available for the position offered. In some cases, the offer of employment and the Labor Certification may be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file directly with USCIS without obtaining a labor certification from the US Department of Labor.
  • Professionals with bachelor’s degrees – An individual holding a US bachelor degree or foreign equivalent with an offer of employment for a US job requiring at least a bachelor’s degree may qualify for the third preference employment-based permanent residency category. 
  • Skilled workers – This subcategory applies to individuals who have been offered positions that require at least two years of training and experience.
  • Unskilled workers – You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Note: All EB3 petitions require an offer of employment and a certification from the US Department of Labor that there are no qualified US workers available for the position offered.

  • Religious workers – This preference applies to special immigrants including qualified ministers and religious workers as well as certain other categories of limited applicability. Religious workers must have an offer of compensated employment in the US from a qualifying, nonprofit religious institution for which they have worked for at least the previous two years.

Other fourth preference categories of limited applicability include: Broadcasters, Iraqi/Afghan Translators, Iraqis Who Have Assisted the United States, International Organization Employees, Physicians, Armed Forces Members, Panama Canal Zone Employees, Retired NATO-6 employees, Spouses and Children of Deceased NATO-6 employees

  • Immigrant Investors – This category applies to individuals who have invested, or are actively in the process of investing, $1 million (or $500,000 in a “Targeted Employment Area” (i.e., high unemployment or rural area), thereby creating at least 10 full-time jobs for U.S. workers
  • Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.
  • Conditional residence is granted for two years. If investment and employment continues beyond two years, permanent residence is granted.

If you are interested in obtaining permanent residency in the United States, there may be an option available to you through business creation or employment. However, the process and regulations governing this process are incredibly strict and complex. It is vital that you enlist the guidance of an experienced immigration attorney who understands legal nuances inherent in obtaining permanent residency through employment and business. Contact the law office of Linda M. Kaplan, P.A. today to schedule a consultation.

Congress imposes limits on the number of visas approved for each of the preference categories. Once the annual limit has been reached, applicants are placed on a “waiting list.” The US Department of State provides a monthly visa bulletin that advises us of the visa availability for that month. The visa bulletin can also be used to make rough estimates of the waiting time, if any, for each preference category. If you wish to see the current visa bulletin, this may be found by visiting the US Department of State’s Visa Bulletin page, https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.