Employment-Based Green Card Sponsorship For PERM Labor Certification and I-140 Petition for Alien Worker

U.S. employers may sponsor workers to remain and work in the U.S. permanently as permanent residents.  For most occupations and positions, an employer must first request labor certification (PERM) from the U.S. Department of Labor to demonstrate that it recruited, but could not locate a suitable U.S. worker for the position. Please visit our PERM Information Center for details regarding the new labor certification procedures. 
 
Certain occupations that are pre-determined to be experiencing a shortage of U.S. workers do not require labor certifications.  Such include positions in the healthcare  field such as nursing, physical therapists, physicians who work in underserved areas, and certain professionals of exceptional ability.  Positions requiring labor certification require employer sponsorship and a job offer from the petitioning employer. For positions requiring labor certification, a green card or  adjustment of status petition may only be filed after the labor certification petition is approved.
 
Certain highly accomplished aliens who meet the very demanding requirements of the first employment based preference category, EB-1, are not required to obtain a labor certification or job offer in order to submit green card or adjustment of status petitions.  Qualifying aliens may submit a green card petition directly with the USCIS without an offer of employment or an approved labor certification.
 
Upon approval of the labor certification, how quickly one becomes eligible to file for a green card or adjustment of status generally depends on the level of education and/or experience required for the profession - the preference.  Depending on the preference category, one must wait for a visa number to become available before he can enter the U.S. or file for a green card adjustment of status if already here.  If the beneficiary of the green card petition resides outside of the U.S., the visa approval is forwarded to the National Visa Center for additional processing and interview at the appropriate U.S. consulate. The length of the wait is determined by the priority date – the date that the labor certification petition was submitted and the preference category.  The Department of State publishes a monthly visa bulletin that reflects visa availability based on preference and priority date.  Following are the various employment based preferences:

• First -Workers of Extraordinary Ability-EB-1
• Second -Members of the Professions Holding Advanced Degrees or Persons of  Exceptional Ability-EB-2
• Third -Skilled Workers, Professionals, and Other Workers-EB-3
  • Schedule A workers -Physical Therapists, Nurses, Aliens of Exceptional Ability in the Sciences or the Arts, and Performing Art Aliens 
• Fourth -Religious Workers-EB-4
• Fifth - Employment Creation/Commercial Enterprise-EB-5

The visa bulletin reflects the priority dates – date of filing of labor certification petitions – for each preference of those aliens who presently have a visa number available to seek adjustment of status.  In other words, one’s priority date must be at or earlier than that listed for the preference before he can apply for adjustment of status.  Note that “C” means that a visa number is currently available for that preference.

In some instances, H-1B visa holders and those who are being sponsored for I-140 green cards  by one employer may change employers while the green card petition is still pending and maintain their H-1B or green card status.  In other words, the H-1B visa as well I-140 green card petitions are sometimes portable or transferrable to a different employer. As such, changing employers does not automatically mean that the green card application or H-1B visa terminates.

Click here to review the September 12, 2006 memorandum describing guidelines for USCIS officers to apply in reviewing and approving employment-based green card petitions.