Clark Hill PLC

Employment-Based Green Cards

Most foreign national employees begin working in the US on a temporary visa (i.e., TN, H-1B, L-1, etc.). An employer who seeks to have a foreign national work for an indefinite period in the US may sponsor him/her for green card status (Immigrant Visa). Due to lengthy processing times, this process should start well before the foreign national’s temporary work status expires, in order to ensure continued employment authorization and legal immigration status. Generally, an employment-based green card is tied to the sponsoring employer as well as the particular position described. In most cases, the first step involved in obtaining a green card for a foreign national employee is the filing of a Labor Certification application with the US Department of Labor (DOL), through the recently implemented PERM process.


Step 1. PERM (Labor Certification):

Most employment sponsored green cards require the filing of a Labor Certification application with DOL. Effective March 28, 2005, all Labor Certification applications can be filed online through a process called PERM (Program Electronic Review Management). Unless the foreign national qualifies under one of the Labor Certification exempt classifications (see Step 2 below), the PERM application must be approved before the case can move to the second step of the process. Generally, an employer must conduct extensive recruiting and advertising for the position, and evaluate the qualifications of applicants for the position, to demonstrate to the DOL that there are no US citizens or US permanent residents ready, willing and qualified to perform the particular job. A PERM application is specific to the employer, the position, the position duties and the geographic location.

Processing time for a PERM case is anticipated to be within 45-60 days. All recruitment must have taken place within the last 180 days, but not within the last 30 days, prior to filing. The type of recruiting required depends on the type of position – non-professional or professional. An employer must document the advertising and recruitment conducted.

All PERM cases require the following: an application to the local State Workforce Agency (SWA) to confirm the minimum salary required (prevailing wage), given the minimum requirements to do the job; evidence of an on site job posting (posted for 10 consecutive business days); and evidence of advertising in 2 Sunday ads in a paper of significant circulation (i.e., Detroit News/Free Press for Metropolitan Detroit). In addition, applications for professional positions require at least three additional methods of advertising including: job fairs; employer’s website; job search website other than the employer’s (i.e. Monster.com, etc.); on-campus recruitment; trade or professional organizations; private employment search firms; employee referral programs; notice of job opening at a campus placement office (if no experience is required); local and ethnic newspapers (if appropriate for the position); and radio and television advertisements.


Step 2. Immigrant Petition for Alien Worker:

This process is required of ALL employment-based green card cases. It is the second stage of the process for employees who have an approved PERM application from DOL, as the US Citizenship and Immigration Services (USCIS) must confirm the PERM approval. Foreign national employees who are exempt from the PERM process begin the green card process at this stage, and file directly with the USCIS regional service center. The following classifications are all exempt from the PERM process:

Intracompany Executives or Managers: Foreign national employees who were employed outside the US in an executive or managerial capacity for at least one year with a company related to the US company (parent, subsidiary or affiliate), in the three years prior to admission to the US, who have an executive or managerial role in the US, generally qualify for this status. Persons in the US in L-1A status usually meet these qualifications. This category requires the company’s sponsorship.

Outstanding Researchers: This classification is available to a foreign national who is recognized internationally for his/her pioneering achievements in the sciences or other academic areas, demonstrated by extensive evidence of international preeminence and original scholarly contributions including: publications in peer-reviewed journals; patents; the individual’s serving in a role requiring judgment or critical review of other’s work; citation of the individual’s work by other authors; significant awards or prizes; and reference letters by preeminent members of the field supporting the individual’s international acclaim and achievements. This category requires the company’s sponsorship.

Extraordinary Ability Professionals: This classification is available to a foreign national who holds sustained national or international recognition in the sciences, arts, education, business or athletics, demonstrated by extensive evidence including: prominent publications regarding the individual and/or the individual’s work; publications written by the individual; significant awards or certificates; public recognition of the individual’s accomplishments; the individual’s serving in a role requiring judgment or critical review of other’s work; the individual’s serving in prominent role in an organization; and the individual receives a high salary. A foreign national who qualifies under this classification may sponsor himself/herself, or may be sponsored by an employer.

National Interest Waiver: This classification requires that the work of a foreign national substantially benefit the US national interest. It is available to a foreign national with a Master Degree or higher (or equivalent), whose achievements and recognition are significantly above their peers. Reference letters are required to prove the foreign national’s achievements and recognition. The foreign national may sponsor himself/herself or can be sponsored by an employer.


Step 3) Immigrant Visa Application:

This is the final stage in the employment-based green card process where the foreign national, and his or her immediate family, apply to become US permanent residents. Applicants may select either Adjustment of Status or Consular Processing as the mechanism to complete the process.

A) Adjustment of Status: An application for Adjustment of Status (AOS) is available only to foreign nationals (and his/her family members) who are currently residing and physically present in the US, and in legal status. The AOS application is filed at the appropriate USCIS regional service center, and can be filed concurrently with stage 2, listed above. Concurrent filings allow for work and international travel authorization while they are pending, and help reduce processing times.

B) Consular Processing: Consular Processing is an alternate way to complete the green card process. A personal interview at the appropriate US consulate outside the US is required of the foreign national, and any dependant family members. No interim work or travel authorization is permitted, independent of the employee’s temporary work status, through Consular Processing.