Employment - based

Individuals seeking lawful permanent resident status through employment may do so based on the fact that they have a permanent employment opportunity in the United States and an employer that wishes to sponsor them. The road to permanent resident status involves multiple steps:

• First, foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of USCIS roads to a green card. Consultation with an experienced immigration lawyer is important here since each individual’s situation is different.

• Second, most employment categories require that the U.S. employer complete a labor certification request (Form ETA 750) for the applicant, and submit it to the Department of Labor’s Employment and Training Administration, whom will either grant or deny the certification request. Qualified alien physicians who will practice medicine in an area of the United States which has been certified as underserved by the U.S. Department of Health and Human Services are relieved from this requirement.

• Third, the USCIS must approve an immigrant visa petition, which is filed on the Form I-140, Petition for Alien Worker, for the person seeking to immigrate to the United States. It is the employer who files the Form I-140, not the foreign national seeking to immigrant. The employer serves as the sponsor for the foreign national.

• Fourth, the State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant. For your convenience we have provided a link to the Visa Bulletin which is published by the Department of State. Visa Bulletin.

• Fifth, if the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. Embassy or Consulate abroad.

Eligibility

There are five categories for granting permanent residence to foreign nationals based on employment skills. For your convenience, we have provided links to the USCIS website providing definitions of each category.

EB-1 Priority workers

• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics

• Foreign national that are outstanding professors or researchers

• Foreign nationals that are managers and executives subject to international transfer to the United States

EB-2 Professionals with advanced degrees or persons with exceptional ability

• 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.

EDB-3 Skilled or professional workers

• 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

EB-4 Special Immigrants

• Foreign national religious workers

• Employees and former employees of the U.S. Government abroad

EB-5 Immigrant Investors

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.

Lawful Permanent Resident Status Through Family Sponsorship

Some individuals may immigrant permanently to the U.S. based on the fact that they have a relative who is a citizen of the Untied States or who is a lawful permanent resident.

•  First, the USCIS must approve an immigrant visa petition, which is filed on the Form I-130, Petition for Alien Relative The Form I-130 is filed by the sponsoring relative and must be accompanied by proof of the relationship to the requesting relative.

• Second, the Department of State must determine if an immigrant visa number is immediately available to the foreign national. This is the case even if the foreign national is already in the United States. When an immigrant visa number becomes immediately available, it is then possible to apply to have one of the immigrant visa numbers assigned. For your convenience we are providing a link to the Visa Bulletin published by the Department of State. Visa Bulletin.

• Third, if the foreign national is already in the United States, he or she may apply to adjust status to that of a lawful permanent resident after a visa number becomes available. If the foreign national is outside the United States when an immigrant visa number becomes available, he or she must then go to the U.S. Embassy or Consular office with jurisdiction over the area in which the foreign national resides to complete your processing. This is the other way in which you can apply to secure an immigrant visa number.

Who is eligible to sponsor a family member?

To be eligible to sponsor a relative to immigrate to the United States an individual must meet the following criteria:

• He or she must be a citizen or a lawful permanent resident of the United States and be able to provide documentation proving your status.

• He or she must prove that you can support your relative at 125% above the mandated poverty line. Click here to find out more information about meeting this criteria and filing an affidavit of support

• If you are a US Citizen you may petition for the following foreign national relatives to immigrate to the United States; however you must be able to provide proof of the relationships:
  o Husband or wife;
  o Unmarried child under 21 years old;
  o Unmarried son or daughter over 21;
  o Married son or daughter of any age;
  o Brother or sister, if you are at least 21 years of age; or
  o Parent, if you are at least 21 years of age

• The categories of sponsorship or more limited for lawful permanent residents, who are eligible to file forL
  o Husband or wife; or
  o Unmarried son or daughter of any age.

What is the difference between an Immediate Relative Category and the Preference System?

People who want to become immigrants fall into either the Immediate Relative Category or Preference System.

Who falls within the Immediate Relative Category?

This category includes parents, spouses and unmarried children under the age of 21 of U.S. citizens. Individuals falling into this category do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by the USCIS. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.

Who falls within the Preference System?

This category includes the following individuals who must wait for an immigrant visa number to become available according to the following preferences:

• First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.

• Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.

• Third Preference: Married sons and daughters of U.S. citizens.

• Fourth Preference: Brothers and sisters of adult U.S. citizens.

Once USCIS receives the visa petition it will be approved or denied. The USCIS will then notify the person who filed the visa petition if the visa petition is approved. The approved visa petition to the Department of State's National Visa Center, where it will remain until an immigrant visa number is available. The Center will notify the petitioner and the foreign national when the visa petition is received and again when an immigrant visa number is available.

The 1996 immigration law significantly tightened immigrant visa eligibility by adding new requirements to the public charge ground of inadmissibly and requires the petitioner of all family-based immigrant visa petitions to submit the Form I-864 affidavit of support. What do I need to know about the public charge grounds?

The Department of Homeland Security, USCIS website sets forth in Question and Answer format important information on Public Charge. We recommend you click on the following link below and review the information.
 http://uscis.gov/graphics/publicaffairs/questsans/public_cqa.pdf

When does the petitioner's liability under the Form I-864 terminate?

The liability of the sponsor executing the Form I-864 terminates only upon one of the following occurrences:
On the sponsored immigrant's naturalization;
On the sponsored immigrant's earning or being credited with a total of 40 "qualifying quarters" as defined by social security law;
On the sponsored immigrant's death;
On the sponsored immigrant's loss or abandonment of lawful permanent resident status and departure from the US; or
On the sponsor's death.

Will a divorce nullify the responsibility under the I-864?

No. The Form I-864 is a binding contract. For example, in an immediate relative marriage petition where the petitioner and beneficiary divorce, the obligation of the sponsor does NOT terminate upon the couple's divorce.

Does a Form I-864 sponsor have an obligation to notify the DHS of a change of address?

Yes. A sponsor has a continuing obligation to inform the DHS and the state in which the sponsored immigrant is residing of the sponsor's change of address, or be subject to civil fines.