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Employment Based

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One of the most common methods of obtaining U.S. Permanent Residency (also known as a “green card”, or an “immigrant visa”)--for persons who do not qualify based on family relationships--is through an employment based petition. There are various employment based avenues (i.e., immigrant categories) for obtaining U.S. Permanent Residency. Note that all U.S. Permanent Residents are entitled to be employed in the U.S. regardless of which avenue they used to obtain their U.S. Permanent Resident status. However, the employment based petitions use some type of employment as the basis for obtaining U.S. Permanent Residency.

The common element in all of these employment based petitions is some connection to the individual’s occupation. For example, the most common methods permit a U.S. employer to “sponsor” an individual for U.S. Permanent Residency based on an offer of permanent employment in a particular type of job (such as, EB-3 Professionals and Skilled workers). Under these methods, the employer must usually establish that there are no U.S. workers available for the job offered, through a process known as “Labor Certification” or “PERM”.

Other employment based methods, however, permit an individual to “self-petition”, i.e., apply himself or herself with no job offer, based simply on the individual’s qualifications (such as, EB-1 Individuals with "Extraordinary Ability", or EB-2 Professionals with advanced degrees who are able to obtain a waiver of the job offer and Labor Certification by showing that it would be in the U.S. National Interest to grant the individual U.S. Permanent Residency).

In addition, it is also important to note that some types of occupations require that special conditions be met in order for the petition to be granted. For example, physicians who are proceeding under the EB-2 or EB-3 categories must establish that they satisfy certain examination requirements (e.g., USMLE) or establish that they are exempt from said requirements. Likewise, health care workers (nurses, physical and occupational therapists, speech-language pathologists, medical technologists and technicians, and physician assistants, etc.) who conduct direct or indirect health care services to patients are required to obtain certain certifications establishing their credentials (such as the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent independent credentialing organization approved by the USCIS).

Another common feature is that these employment based petitions are open to all nationalities; however, the amount of time that an individual's immigrant visa appliation takes to be processed often varies greatly depending on the individual’s nationality (or more precisely what country the individual is “chargeable to”) because there is a quota which applies to each country and immigrant category. Therefore, some categories become oversubscribed, so that an individual who is chargeable to a particular country will often have to wait until his or her “priority date” becomes “current” (i.e., an immigrant visa becomes available) in order to proceed with a particular petition. For example, the countries of CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES are often over-subscribed for certain employment based categories. Likewise, the EB-3 Other Workers (unskilled workers) category is often over-subscribed for all applicants regardless of country. For example, for September, 2006, immigrant visas under the EB-3 Other Workers (unskilled workers) are deemed “unavailable”.

It should also be noted that an individual is not permanently bound to the particular employment by which he or she obtained U.S. Permanent Residency. Instead, once an individual has obtained U.S. Permanent Residency, without conditions, the individual can change his or her employment for whatever reason, provided that the individual intended to accept the permanent position during the processing of the petition. Likewise, an employer is not permanently bound to employ the individual that the employer petitioned for (although there may be other labor law or contractual considerations).

Therefore, in evaluating a particular employment based avenue for obtaining U.S. Permanent Residency, to determine whether it is feasible for your particular situation, it is necessary to take into consideration a number of factors, such as: (1) whether a Labor Certification (PERM) is required; (2) whether you can self-petition, or require a U.S. employer who is offering a permanent job to petition on your behalf; (3) whether your occupation must comply with special conditions, such as credentials certification for nurses and other health care workers; and (4) whether the priority date for the particular employment based category is current, or tends to be over-subscribed for your country, and if so the amount of likely waiting time.

The chart below summarizes the most common employment based avenues for obtaining U.S. Permanent Residency. The third column indicates whether a Labor Certification (PERM) is required for the particular category. The fourth column indicates whether an individual can self-petition for the particular category. The fifth column provides a sample of priority dates for the particular categories, using the September 2006 dates. In reviewing this chart, you may wish to click the “Description” for each category to get a sense of the category.

Disclaimer: note that this list may not be exhaustive of all of the employment based avenues for seeking U.S. permanent residency which are available. It is provided for general reference purposes only.

You may wish to review the List of primary avenues to U.S. Permanent Residency (“Green Card” status) to get a sense of other avenues to U.S. Permanent Residency.

Category Description Labor Certification (PERM) Required Self-petition Permitted Priority Date (based on September 2006 Visa Bulletin)
EB-1 Individuals with "Extraordinary Ability" NO YES Current
EB-1 Outstanding Professors and Researchers NO NO Current
EB-1 Multinational Executives and Managers NO NO Current
EB-2 Professionals with advanced degrees YES, unless job offer requirement WAIVED in NATIONAL INTEREST, or if occupation is pre-certified under "Schedule A". NO, unless job offer requirement WAIVED in NATIONAL INTEREST CHINA-
mainland born, 01MAR05; INDIA, unavailable; All Others, Current
EB-2 Persons with exceptional ability YES, unless job offer requirement WAIVED in NATIONAL INTEREST, or if occupation is pre-certified under "Schedule A". NO, unless job offer requirement WAIVED in NATIONAL INTEREST CHINA-
mainland born, 01MAR05; INDIA, unavailable; All Others, Current
EB-3 Professionals YES, but some occupations can be pre-certified (such as NURSES and PHYSICAL THERAPISTS, under “Schedule A”), meaning that they are deemed to have received a labor certification automatically. NO CHINA- mainland born, 01MAR02; INDIA, 15APR01; MEXICO, 22APR01; PHILIPPINES, 01MAR02; All Others, 01MAR02
EB-3 Skilled workers YES, but some occupations can be pre-certified (such as NURSES and PHYSICAL THERAPISTS, under “Schedule A”), meaning that they are deemed to have received a labor certification automatically. NO  
EB-3 Other Workers (unskilled workers) YES NO Unavailable
EB-4 Religious Workers NO NO Current
EB-5 Employment creation Investors NO YES Current

Reader Comments

Help

Greetings,
We have had two non-immigrant Chinese employees in the past at our nursing home facility who did a great and wonderful job. We have ran newspaper ads, and went to the local employment offices for submissions and referrals for well over a month now to fill jobs that we need desperately filled, and NO responses, and not one single referal from the local employment office.
Can you please give me the procedures, and the way or information I would go about on advertising, securing a visa for a Chinese citizen who would fullfill a job and duties for above minimum wage pay at our family state licensed nursing home facility?
Please let me know, and what phone numbers or whom to contact regarding this.
Thank you so much.
Best Regards,

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Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

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"FMG Friendly" Employers

Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

Use this form to search for "FMG Friendly" employers in a given state.

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