A person who wants to begin living in the U.S. as a lawful permanent resident must have some path towards this status. In most cases, this entails having an individual or an employer sponsor the foreign national through the filing of a petition. The USCIS form used to sponsor an employee is called the Form I-140 Immigrant Petition for Alien Worker. This petition establishes the reason for a person’s ability to immigrate and determines the immigrant classification or category.
Like (family petitions), employment sponsored immigrant petitions have different classifications of preference and are also subject to annual numerical limitations on the number of individuals who can immigrate per country. As many more petitions have been filed than there have been “visa numbers” available, a backlog has developed for some classifications from certain countries. In years’ past, most immigrants faced a backlog of several years whereas today the visas are mostly current except for individuals from China and India. Below is a summary of the main employment based petitions categories:
1st Preference – Aliens of Extraordinary Ability; Multinational Managers and Executives; and Outstanding Researchers
2nd Preference – Master’s Degrees or Higher
3rd Preference – Skilled Worker (at least 2 years of experience) or Bachelor’s Degree
4th Preference “Other Workers” – Unskilled Workers with less than 2 years’ experience required
5th Preference – Special Immigrant Religious Workers
Each classification has its own sets of requirements and restrictions. But most of these petitions also require the filing of a preliminary step with the U.S. Department of Labor, which can still end up being the most difficult part of the process. Before an employer can file a petition for a foreign worker, the employer must obtain permission from the DOL that there are no U.S. workers that are qualified, willing, able, and available to work this petition. To obtain this certification from DOL, often called a “labor certification,” the employer must follow a strict set of DOL rules for the posting of actual job advertisements with different sources for a period of time. If applicants apply who may qualify, the employer must contact the applicants for further interview. It may be necessary in some instances to indirectly offer a job to an applicant to see if he or she will accept it. It is only if no qualified applicants apply or a qualified applicant declines the position will the employer be able to submit the application. Once certified from DOL, the employer can file the petition; however, the employer must establish the beneficiary meets the job requirements as set forth in the labor certification and that the employer can pay the beneficiary the prevailing wage.
Our office can help you determine:
- Which classification best fits your position and qualifications
- What job category best describes your current occupation and what wage the DOL will likely assign you to be paid based upon your job requirements
- How to navigate job requirements that are reasonable for the occupation, not overly tailored to the beneficiary yet likely to disqualify the most potential applicants
- What job advertisements need to be posted, where, and for how long, and when it is time to submit the application
- Whether the employer will be able to prove to USCIS that it has been or will be able to pay the prevailing wage
- Whether there are any other petition options available to you that may speed the process or avoid other complications.