Immigrants who have the opportunity to come to work in the United States often have the opportunity to adjust their temporary status to that of legal permanent resident status. There are four categories for granting permanent residence to foreign nationals based upon employment:
1. EB-1 priority workers
The first preference category requires no labor certification as a condition of visa issuance. In other words, persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position. EB-1 priority workers include:
- Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;
- Foreign nationals that are outstanding professors or researchers;
- Foreign nationals that are managers and executives subject to international transfer to the United States.
2. EB-2 professionals with advanced degrees or persons with exceptional ability
Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. However, it is possible to avoid the requirement of a labor certification or job offer in certain cases. EB-2 professionals include:
- Foreign nationals of exceptional ability in the sciences, arts or business;
- Foreign nationals that are advanced degree professionals
- Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved
3. EB-3 skilled or professional workers
Third preference workers must have a job offer and obtain a labor certification. EB-3 workers include:
- Foreign national professionals with bachelor’s degrees (not qualifying for a higher preference category);
- Foreign national skilled workers (minimum two years training and experience);
- Foreign national unskilled workers
4. EB-4 special immigrants
Immigrants under this category include:
- Foreign national religious workers;
- Employees and former employees of the U.S. Government abroad.
The First Step in a majority of employment based cases is to file a Labor Certification Application. The immigrant’s employer must file this application which will describe the responsibilities of the job and qualifications needed by the employer. The employer must prove two conditions before a labor certification will be granted:
- There are no U.S. workers in the area where the job exists, who are available, willing, and able to fill the position; and
- The individual’s employment will not “adversely affect” the wages and working conditions of similarly situated U.S. workers.
The Second Step is filing an Immigrant Petition (Form I-140) with USCIS. While the labor certification application assures the United States government that there are no qualified U.S. workers in the area of the job, the immigrant petition is the request by the employer to hire a specific non-U.S. citizen for the job. After the immigrant petition is approved, the employee can apply for adjustment of status as permanent resident.