Employment-Based Permanent Resident Status

Foreign nationals may obtain permanent resident status through employment. Immigration and Nationality Act § 203(b) describes employment-based visas by preference categories:

  • Priority Workers (EB-1): foreign nationals with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
  • Professionals Holding Advanced Degrees or Exceptional Ability (EB-2): foreign nationals with advanced degrees or exceptional ability in the arts, business, or sciences.
  • Skilled Workers, Professionals, and Other Workers (EB-3): Skilled workers are foreign nationals who can perform skilled labor and have 2 years training or experience. U.S. regulations define a professional as a foreign national holding at least a U.S. baccalaureate degree, equivalent foreign degree, and who is a member of a profession. Unskilled laborers require less than 2 years training or experience.
  • Religious Workers (EB-4): Ministers, as defined by 8 C.F.R. § 204.5(m)(5), may apply for permanent resident status based upon employment. Other than religious workers, the EB-4 category also includes INA § 101(a)(27) special immigrants.

INA § 203(b) also describes immigrant visas for 5th (EB-5) and 6th (EB-6) preference categories. The EB-5 category authorizes investor visas. Foreign nationals, who served or currently serving in the U.S. military, may fall within the EB-6 preference category.

What Is the Process to Obtain Employment-Based Permanent Residency?

In general, the process involves:

  • an employer obtaining a prevailing wage determination from the U.S. Labor Department,
  • an employer obtaining permanent labor certification approval from the U.S. Labor Department,
  • an employer filing a petition with evidence for USCIS’s analysis,
  • both the employer and the foreign national waiting for USCIS to approve the petition,
  • all parties waiting for the priority date to become current,
  • the foreign national applying for an immigrant visa at a U.S. diplomatic post or filing an I-485 adjustment application, and
  • a foreign national filing an inadmissibility waiver under some circumstances.  

After USCIS approves the I-140 petition, the priority date must become current to receive an immigrant visa for consular processing or status adjustment (I-485 Form) in the U.S.    

What Is a Prevailing Wage Determination and Who Must Request the Determination?

An employer files an application for prevailing wage determination with the National Processing Center. 8 C.F.R. § 656.3 defines a prevailing wage determination as the prevailing wage approved by a National Processing Center. Section 656.40(c) requires that the National Processing Center designate the prevailing wage determination’s validity period between 90 days and 1 year after the determination date. During the validity period, the employer must begin the recruitment process or apply for PERM labor certification.

What Purpose Does Labor Certification Serve?

An employer applies for PERM labor certification after attempting to locate a U.S. worker possessing the qualifications necessary for the position. U.S. law regulates the advertisement methods an employer must use to search for U.S. workers. An approved labor certification demonstrates that the employer could not find a qualified U.S. worker to accept the position.

Is PERM Labor Certification Necessary?

U.S. regulations intensely regulate employment-based petitions and the process to obtain permanent residency. USCIS cannot approve an I-140 petition without an approved labor certification when required by regulation.  

Does an Approved Labor Certification Remain Valid Forever?

No. An employer must file the I-140 petition within 180 days after the U.S. Labor Department approves the labor certification. Under limited circumstances, an employer may file an expired certification previously approved by the Labor Department.

Can the U.S. Labor Department Revoke an Approved Labor Certification?

Yes. After approving a labor certification, the U.S. Labor Department may revoke the certification. The Labor Department will notify the employer by issuing a Notice of Intent to Revoke (“NOIR”), and the employer may challenge the revocation by submitting additional evidence. After analyzing the employer’s evidence, if the Labor Department concludes that the revocation should stand, the employer may appeal the adverse decision.     

What Happens if USCIS Approves the Petition, but My Priority Date is Not Current?

After USCIS’s approval, an employment-based petition remains valid indefinitely unless petition revocation occurs pursuant to INA § 203(g) or INA § 205.