I qualify for one of the EB visas. What comes next?

If you think you are under one of the categories that do not require employer’s sponsorship, you can go to the immigration attorney, who will prepare and file a green card petition on your behalf. If your preference category requires to have a job offer from a U.S. employer, before an immigration petition can be submitted to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor.

 

Labor Certification

 

The initial step is for employers (if a job offer is required for the applicable EB visa category) to begin the long process of labor certification.

 

The goal of labor certification is to prove to the U.S. government that there is no U.S. worker who is qualified, willing and able to do the job. The employer needs to advertise the job to U.S. workers as well as conduct some job interviews of U.S. candidates. If after this they still have no suitable U.S. candidate for the job, the green card application process can commence.

 

The employer may only reject U.S. candidates on lawful grounds, which include reasons like:

 

     Lack of required education or training

     Lack of required experience

     Failure to show up to an interview or respond to correspondence

     Poor references

     Lack of proper documentation proving qualifications

     Not interested in taking the job

 

Once the employer can show that no U.S. candidate is available, they must then complete Form ETA-9089 and the labor certification through a system called PERM (Program Electronic Review Management). The entire process is both time-consuming and time-sensitive. Employers usually hire a lawyer to perform these activities. 

 

When is Labor Certification Not Required?

 

Labor certification is only required for EB-2 and EB-3 positions. It is waived, however, for those with a National Interest Waiver petition under EB-2 (meaning that placing the foreign worker into the job is in the national interest of the country.) Labor certification is not required for any EB-1 (even though a job offer from a U.S. employer is required for EB-1B and EB-1C categories), EB-4.

 

Filing the Petition and Green Card Application

 

Once the labor certification is approved, the employer may file a petition for a green card with Form I-140. The petition must show that the job applicant fulfills all of the requirements laid out in the labor certification and applicable EB category. The form must be filed within 180 days of when the labor certification was approved. The worker must file a Form I-485 application for adjustment of status either simultaneously, or after the I-140 is approved, if a worker is already in the United States with any nonimmigrant visa. If the worker is outside of the United States, the approved I-140 is submitted to the National Visa Center and consular processing is initiated. The person will be called for an interview at the U.S. consulate at a place of that person’s residence and an immigrant visa will be issued, which allows traveling to the United States in a new status. The worker’s spouse and children are listed in the petition to ensure that they can travel with the worker and green cards are issued for each member of the family around the same time.

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