Employment Based Permanent Residence

Employers may sponsor foreign nationals for Legal Permanent Residence (“LPR”) based on a permanent position available with that employer.  This process normally entails three steps:

1. the filing of a labor certification application with the U.S. Department of Labor (“DOL”);
2. the filing of an I-140 Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Services (“USCIS”); and
3. the filing of an I-485 Application to Adjust Status to Permanent Residence with USCIS by the foreign national.

Preference Categories
The need to obtain a labor certification depends on the employment-based classification within which the foreign national fits.  USCIS classifies foreign workers seeking to become LPRs in different preference categories based on their education, professional experience, particular vocation, and other factors.  There are a total of five employment-based preference categories.

Labor Certifications are required of individuals in the Second Preference Category (except in National Interest Waiver cases) and the Third Preference Category.  The Second Preference category (“EB-2”) includes “Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability.”  An advanced degree is considered to be a Master’s degree or higher or a Bachelor’s degree plus a minimum of five years of progressively responsible post- Baccalaureate experience.  Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered.

The Third Preference category (“EB-3”) includes “Professionals, Skilled, and Other Workers.”  Professionals include persons who are members of the professions who have at least a Bachelor’s degree.  Skilled Workers are individuals who will be employed in a full-time permanent job requiring at least two years of training or work experience.  Other Workers are foreign nationals with less than two years of training or work experience.

No labor certification is required for foreign nationals in the other three employment-based preference categories (First, Fourth, and Fifth Preference).  These categories include Aliens of Extraordinary Ability; Outstanding Professors or Researchers; Multinational Managers or Executives; Investors; National Interest Waiver Petitioners; and others in high demand occupations.  Some categories of foreign nationals may not require an employer to sponsor them for permanent residence and may do so on their own by filing an I-140 petition on their own behalf. 

Click here for more information on employment-based permanent residence.