How to Get an Employer-Sponsored Green Card
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How to Get an Employer-Sponsored Green Card

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What is an Employer Sponsored Green Card?

The United States has many different ways for a foreign national to become a permanent resident (green card holder). Some options require you to invest in a United States business. Some options are available if you have immediate family members who are US citizens or green card holders. Other options are available for people who have a United States company that is willing to sponsor their green card through a job offer, and this is called an employer-sponsored green card.

To get an employer-sponsored green card, a United States company will file various immigration forms with the United States Citizenship and Immigration Services (USCIS) on the employee’s behalf. The employer is considered the petitioner (the party filing the immigrant petition with USCIS), and the employee is the Beneficiary (the party directly receiving immigration benefits). Based on the employer’s actions on the employee’s behalf, the employer is considered the sponsor.

What are the Benefits of an Employer Sponsored Green Card?

  • • Ability to live and work in the United States.
  • • The employee’s spouse and unmarried children under 21 years old also qualify for green cards (as dependents).
  • • Direct route to a 10-year green card (no 2-year "conditional" green card).
  • • Lower standards for approval compared to EB1A "extraordinary ability" and National Interest Waiver standards.
  • • No investment required.
  • • Eligible to naturalize to become a US citizen after 5 years.
What is the Process of Getting an Employer Sponsored Green Card?

Getting an employer-sponsored green card is a 3-step process. First, your Employer is required to get an approved Labor Certification from the United States Department of Labor (DOL). Second, your Employer must file an immigrant petition on your behalf (Form I-140). Third, you must either adjust your status (Form I-485) or apply for your immigrant visa (Form DS-260). Let's now discuss each of these steps in more detail.

Labor Certification

• The first step in getting a green card through employer sponsorship is for your Employer to get an approved labor certification from the United States Department of Labor (DOL). This process is in furtherance of the “PERM” step.

• The immigration laws seek to protect the US workforce's interests, wages, and working conditions. Therefore, before you immigrate to the US, the DOL must certify a shortage of qualified workers.

• This process requires your Employer to test the US labor market to see if there are any qualified US workers to fill the position they are offering to you.

• Your Employer must make good-faith efforts to hire a qualified US worker by advertising the available job opportunity and considering the qualifications of all US applicants.

• Your Employer must also get a prevailing wage determination from the National Prevailing Wage Center by filing a Form ETA 9141.

• Your Employer must then file an Application for Permanent Labor Certification with the Department of Labor (ETA Form 9089).
Immigrant Petition

• Once your Employer has an approved labor certification application, you can proceed with the next step, which is to file the immigrant visa petition with the United States Citizenship and Immigration Services (USCIS).

• Many employer-sponsored green cards fall under 2 visa categories: EB-2 and EB-3. The appropriate category will depend on the job requirements and the individual credentials of the Beneficiary.

• EB-2: This category is generally appropriate if the position requires an advanced degree. An advanced degree is a US bachelor’s degree (or foreign equivalent) plus several years of experience.

• EB-3: This category is generally appropriate if the position requires a professional, skilled worker, or unskilled worker. Generally, a "professional" holds at least a US baccalaureate degree or a foreign equivalent. A "skilled worker" is capable of performing skilled labor (labor that requires at least 2 years of experience or training). An "unskilled worker" is capable of performing unskilled labor (labor that requires less than 2 years of experience or training).

Adjustment of Status or Immigrant Visa Processing

• Once USCIS approves the immigrant visa petition, the next step is to adjust your status or apply for your immigrant visa.

• Adjustment of Status: An adjustment of status is converting whatever status you currently have to permanent resident status. To adjust status, there must be a visa number available, and you must file Form I-485 with USCIS. The entire process is handled within the United States. You must be physically present within the United States to adjust your status. In many cases, your adjustment of status application can be filed at the same time as your immigrant visa petition. By concurrently filing both forms, you can significantly reduce the overall processing time.

• Immigrant Visa Processing: Immigrant visa processing, also called "consular processing," is obtaining an immigrant visa at a US consulate or embassy abroad. To get your immigrant visa, you must electronically file a Form DS-260. You will also be required to attend an immigrant visa interview at your home country's US consulate or embassy. Upon successfully completing the interview, an immigrant visa should be issued to you within a week unless administrative delays occur. Immigrant visa processing is typically done if you are not physically present in the United States, are not ineligible to adjust your status, or do not want to complete the processing inside the US.

What are the Requirements to Get an Employer Sponsored Green Card?

Employer Requirements

1. United States Employer
• Your Employer must be based in the United States.
• The position offered must be based in the United States.

2. Permanent Full-Time Position.
• The position offered must be a permanent, full-time position..
• Full-time means at least 35 hours per week..
• Permanent means that the position should be for an indefinite duration. Temporary positions do not qualify.

3. Bona Fide Job Opportunity.
• The position being offered must be considered a bonafide job opportunity.
• With respect to this requirement, the DOL seeks to determine that the job opportunity is an actual position that the Employer is seeking to fill (rather than a way to obtain immigration benefits for a foreign national).

4. Employer Attestations
• On the labor certification application, the Employer is required to make a number of attestations under penalty of perjury.
• These attestations include some of the following:
1) that the position is for full-time permanent employment;
2) that the job opportunity does not involve unlawful discrimination;
3) that the position is open to any US worker;
4) that the Employer will pay the foreign national the "prevailing wage" for the position;
5) that the Employer has sufficient funds to pay the foreign national the prevailing wage; etc.

5. Good Faith Recruitment Efforts
• The Employer must make good-faith efforts to hire a qualified US worker
• These recruitment efforts include some of the following
1) opening a job order with the appropriate State Workforce Agency (SWA) for 30 days;
2) publishing 2 Sunday print advertisements in a newspaper of general circulation; and many more depending on the job offered.

6. Job Requirements
• The job requirements cannot be tailored to the foreign national's qualifications.
• The job requirements must be representative of what is customary for the profession.
• The job requirements cannot be unduly restrictive.

7. Prevailing Wage
• The general concept of the prevailing wage requirement is that the US immigration laws are designed to protect the interests, wages, and working conditions of US workers. Therefore, the prevailing wage requirement was designed to prevent US employers from paying foreign workers less than what a similarly qualified US worker would get paid for the position.
• The Employer is required to get a prevailing wage determination for the National Prevailing Wage Center (NPWC) by filing a Form ETA 9141.
• The prevailing wage determines what the minimum wage is for the position offered.
• The wage offered to the Beneficiary must be equal to or higher than the prevailing wage.

8. Ability to Pay Prevailing Wage
• In addition to getting the prevailing wage determination and offering to pay the prevailing wage, the Employer must prove its ability to pay it.
• The Employer can show that it has the ability to pay the prevailing wage through:
1) tax returns for the most recent year showing net income equal to or greater than the salary offered to the Beneficiary;
2) tax returns for the most recent year showing net current assets equal to or greater than the salary offered to the Beneficiary;
3) the Beneficiary's most recent paystub and W-2 showing that the Employer has paid the Beneficiary a salary equal to or greater than the prevailing wage.

Important Points
• In order to adjust status or to apply for your immigrant visa, a visa number must be available. Generally, for the EB-2 and EB-3 visa categories, visa numbers are generally current and available for all countries except China and India.
• If you are eligible to adjust status, and a visa number is available for you, you may concurrently file your immigrant petition with your adjustment of status application. This can save a considerable amount of processing time, as you will not have to wait for the immigrant petition to be approved before filing the adjustment of status application.
• From the time you file your adjustment of status application, you should receive your work authorization (EAD) and travel permission prior to the adjudication of the green card application.

What Documents are Needed to Get an Employer Sponsored Green Card?

Here is a general list of some of the documents needed throughout the process of getting an employer sponsored green card:
• Beneficiary's CV or resume
• Copies of Beneficiary's diplomas, degrees, and transcripts
• Beneficiary's work experience letters
• Beneficiary's birth certificate
• Copy of biographic page of Beneficiary's passport
• Beneficiary's marriage certificate
• US employer's tax return
• Copies of the newspaper ads that were published
• Job description for US position

Conclusion

As a foreign national, there are multiple ways for you to get a US green card. Of these, a great option is an employer-sponsored green card. For the right candidate, the process can be straightforward and relatively quick. If you have any questions regarding any of the information in this guide, or if you’re interested in hiring Direct U.S. Immigration to handle your employer-sponsored green card, feel free to email us directly at inquiry@directusimmigration.com.

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