IMMIGRATING TO USA THROUGH EMPLOYMENT - FREQUENTLY ASKED QUESTIONS

How Do I Apply For Permanent Residence Through Employment?

An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

1. The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.

2. In most employment categories, a US employer must apply for a labor certification for you from the US Department of Labor demonstrating that there are no available or qualified US worker for the job offer in the area of intended employment.

3. The State Department must give you an immigrant visa number, even if you are already in the United States. Please see the Visa Bullen for information about the immigrant visa number?

4. If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local US consulate to complete the processing for an immigrant visa.

What Does the Law Say?

The legal foundation for getting approval for hiring an alien worker permanently comes from the Immigration and Nationality Act (INA). For the part of the law that addresses employment-based immigrants, please see INA § 201, INA § 202, INA § 203 and INA § 204. Rules published in the Federal Register explain the eligibility requirements for individuals petitioning for employment-based immigration based on specific criteria. They are in the Code of Federal Regulations [CFR] at 8 CFR § 204.5.

Who is Eligible for Employment Based Immigration?

There are five categories of employment based immigration:

• First Preference (EB1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

• Second Preference (EB2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens 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.

• Third Preference (EB3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.

• Fourth Preference (EB4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.

• Fifth Preference (EB5 Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise, please see How Do I Become an Immigrant Through an Investment?.

How Do I File a Petition for Alien Worker?

A USCIS Form I-140 (Petition for Alien Worker) must be filed at the USCIS Regional Service Center that serves the area where you will work.

How Can I Appeal?

If your Petition for Alien Worker is denied, the denial letter will tell you how to appeal. Generally, you may file a Notice of Appeal along with the required fee at the appropriate USCIS Regional Service Center within 33 days of receiving the denial. Once the fee is collected and the form is processed at the Service Center, the appeal will be referred to the Administrative Appeals Office (AAO) in Washington, DC. Sending the appeal and fee directly to the AAO will delay the process.

THE INFORMATION ON THIS WEBSITE IS NOT TO BE CONSIDERED LEGAL ADVICE. SUCH INFORMATION IS INTENDED TO EDUCATE MEMBERS OF THE PUBLIC GENERALLY AND IS NOT INTENDED TO PROVIDE SOLUTIONS TO INDIVIDUAL PROBLEMS. READERS ARE CAUTIONED NOT TO ATTEMPT TO SOLVE INDIVIDUAL PROBLEMS ON THE BASIS OF INFORMATION CONTAINED HEREIN AND ARE STRONGLY ADVISED TO SEEK ADVICE FROM AN EXPERIENCED IMMIGRATION LAWYER REGARDING SPECIFIC CASE SITUATIONS.

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