How to obtain an EB-2/EB-3 employment-based green card? Overview of the three major steps.
Abstract: As the USCIS raises the standard for the adjudication of the H-1B work visa, a numbered of applicants have experienced frustrations in the process of initial applications, change of employers, and extending their H-1B visas. The obtainment of a green card is an inevitable key to stability. Are you prepared to discuss the option of an employment-based green card with your employer now?
For applicants that want to work or stay permanently in the U.S., visa is inevitably an important matter. Under normal circumstances, the employers will submit an H-1B petition for H-1B employees by the end of their OPT. However, as we all know, H-1B is a non-immigrant visa, and the approval will not exceed 6 years even with an extension (however, there are a few exceptions). If your goal is to stay and work in the U.S. for the long term, then the most common solution is to obtain an employment-based green card, which is often referred to as the EB-2/EB-3 immigration green card.
The client often asked us this question: Am I eligible for the EB-2/EB-3 green card? My company is quite small, will it be qualified to apply? What are the steps for the green card application? How many years do I need to wait to obtain the green card?
In this article, we will explain the application steps for EB-2/EB-3 to help the applicants gain an insightful look into the process.
Note: There are different types of EB-2 and EB-3. In this article, we will focus on EB-2 Advanced Degree and EB-3 Professionals (abbreviation EB-2 and EB-3).
I. Do I meet the requirements?
EB-2/EB-3, in essence, is that the employer will submit a green card application on behalf of the foreign employee based on a future full-time job offer. In other words, the employer wants to hire the employee to work for the company based on the offered position and full-time salary after the obtainment of a green card.
The concept for the future full-time position: The offer is based on a future full-time position. The offer is not determined by whether the applicant is currently working part-time, currently working in this company, or currently in the U.S. For example, employee A works part-time in company B, company B is helping employee A obtaining an EB-2/EB-3; employee A currently works at company C, and company B is helping employee A applying for an EB-2/EB-3; A works in China, company B is helping A obtaining an EB-2/EB-3 so that after A obtains the green card, A can work in company B. All of the above can be done.
Before applying for the green card, you have to first make sure that you are qualified for the application.
EB-2 applicants need to meet the following degree requirement or experience:
1. Master degree or above
2. Bachelor degree and 5+ years of working experience
EB-3 applicants need to meet the following degree requirement or experience:
1. Bachelor degree or above
Note: There are different types of EB-2 and EB-3. In this article, we will focus on EB-2 Advanced Degree and EB-3 Professionals.
After making sure that you meet the application requirement, then you can start proceeding with these 3 steps: PERM, I-140 petition, I-485 petition.
II. Green card application vs. work
Many clients asked us that by starting the green card application, does that mean they can now work legally in the U.S.? The answer is not necessarily!
Submitting PERM and I-140 petition does not grant the employed the right to work legally. On the other hand, if in this stage, the employee holds an OPT, H-1B, or any other type of non-immigrant visa, then the employee can work in the U.S. based on the OPT or H-1B.
The same goes for I-485. By submitting the I-485 application does not grant the employed the right to work. However, you can submit the EAD card application at the same time as the I-485, and work based on this EAD card. For employees with OPT, H-1B, and other types of non-immigrant visas, they can also choose not to submit the EAD card application, and work in the U.S. based on the OPT and H-1B visa.
In the below article, we will discuss in detail the 3 important steps of the green card application: PERM, I-140, and I-485.
III. 3 steps of green card application
1. PERM labor certification
The mention of PERM will usually bring up specialized terms such as advertisement, U.S. employee, wage requirement, etc.
Simply put, while in the stage of PERM (Program Electronic Review Management Process), we need to prove that when foreign employees obtain the right to work permanently in the U.S. will not undercut the job opportunities of the U.S. workers. (U.S. worker = U.S. citizen, permanent resident, or foreigners with special work permission)
In other words, in the stage of PERM, the employer needs to carry out a series of good-will recruitment proving that they can not find U.S. workers meeting the minimum requirement.
For most situations, there are 4 stages to the PERM process:
1) Prevailing wage determination (“PWD”):
The employer needs to describe the following for the position: job responsibilities, minimum requirement, and work location, etc, and all information have to be submitted to the Department of Labor (“DOL”). The DOL will determine the prevailing wage for the foreign employee based on the above-provided information.
For example, DOL determined the PWD for the position of accountant in NYC is Level 2, salary is $77,459 per year. As we mentioned, a green card is based on a future offer.
In this case, if the employer decides to proceed through with the green card application, then the employer must promise to pay the foreign employee an annual salary equivalent to or greater than $77,459 after the foreign employee obtains the green card.
It is worth noting that if the PWD wage exceeds what the employer can afford, the employer can choose not to accept the determined PWD, consult with the attorney, and instead choose redetermination or resubmit the PWD application.
PWD is to prevent the employer from hiring low wage foreign employees and undercut the U.S. workers’ employment opportunities and at the same time protect the foreign employees’ rights to ensure the wage standard.
2) Advertising process:
After obtaining the PWD from DOL and agreeing to pay the foreign employees the promised wage upon the receipt of a green card, then the employer can post a job advertisement on the required media and keep a record of the recruitment process and information.
Based on PERM rule 20 CFR §656.17(f), the information that needs to be in a job posting includes the company name, methods of application, informative job description, work location (which needs to indicate the city and state).
Note: In practice, some employers have reduced the content hoping to cut the cost of the advertisement. The 4 items mentioned above, however, can not be omitted, otherwise, it may lead to the case being denied.
For example, employers were hoping to omit the company name, which is an absolute mistake.
According to the DOL, the company name may help the potential job applicants better decide whether to apply for the position. Also, many applicants will likely not want to submit resumes to a company with an unknown identity and not knowing who will be receiving and handling the information submitted. In summary, during the advertising process, do not delay the process by cutting corners.
3) Screening interviews:
As the job posting is advertised, the law requires a 30-day quite period. The 30 days is to ensure that the applicants have sufficient time to see the job posting and submit resumes.
The DOL requires the employer to review all the resumes submitted. If the resume meets the application requirement, the employer needs to immediately schedule an interview, and keep the interview record. If the employer concludes that the applicant does not meet the requirement, then a detailed record specifying rejection reasons should be kept.
The logic for the above is:
The employer carried out the recruitment process in goodwill. After the recruitment search, a qualified candidate was not found. Therefore, the employer sincerely wanted to help the foreign employee apply for the green card because there was none other than this foreign employee that could successfully fulfill this position.
If during the interview, the employer found a U.S. worker that meet the recruitment requirement, then PERM must be stopped.
4) Submit PERM application to obtain priority date:
If the employer is unable to find a qualified U.S. worker, it can then submit the PERM 9089 on behalf of the foreign employee.
If DOL determines that the employer indeed was not able to find a qualified U.S. worker after it had gone through the required recruitment, then DOL will approve the PERM application.
However, if the DOL determines that the employer’s recruitment had not been done in good faith or the process was more random than intentional, then DOL can request a special audit on the application. The employer should respond and provide all relevant materials to DOL within 30 days after the receipt of the audit notice.
Priority Date: priority date is the date on which DOL receives the PERM application. In other words, priority date is the date on which PERM is submitted, not the date the PERM is approved. This process is only contingent on the conditions that 1) PERM has to be certified and 2) the approval of the corresponding I-140 application, to obtain the priority date.
For example, A’s PERM was submitted on January 1, 2018, and was approved. However, A was unable to obtain the priority date because his I-140 petition was not approved. The priority date is closely related to the I-485 petition which we will discuss in detail below.
2. I-140 petition
PERM is effective for 180 days after the approval. The employer should submit the I-140 petition within 180 days. The term is set for 180 days for the reason that there may be qualified U.S. workers that meet the requirement after the set period.
If the employer is unable to submit the I-140 petition in 180 days, then the PERM application will have to start all over again.
Position requirements determine the category of the EB-2/EB-3 green card:
As we previously mentioned, EB-2 and EB-3’s category is determined by the degree and experience requirement of the proffered position, and not only by the employee’s own degree or work experience. Also, the employee’s education and experience must meet the requirement of the job offer.
For example: The minimum requirement for the position in A’s PERM is a bachelor’s degree and one year of work experience. In this case, A has a master’s degree.
In the I-140 stage, we determine the green card category to be EB-3 by the position requirement (bachelor’s degree and one-year work experience), and not by A’s own qualification (master’s degree).
There are two criteria in the approval process during the I-140 stage:
Does the employer have the ability to pay? Is the employee qualified for the position?
From the employer’s perspective: the employer is required to submit financial documents proving its ability to pay the wage as indicated on the PWD. The size of the employer is irrelevant to its ability to pay. In the past, we had represented a company with just one employee in which we had successfully helped the client obtain approval for the green card. We will discuss in detail the employer’s ability to pay and relevant influencing factors in our coming articles.
From the employee’s perspective: the employee needs to prove to the USCIS his/her qualification for the position, such as education, work experience, work skills, etc.
The purpose of this requirement is that the employer can not eliminate a U.S. worker that does not meet the qualification, and yet the hired foreign employee barely meets the same required qualification. To avoid this phenomenon, the officer will carefully review the employee’s qualification in the I-140 stage.
In the I-140 stage, the petition can be submitted for premium processing.
To have the petition reviewed by premium processing, the applicant has to pay an additional fee of $2,500 and fill out an I-907 form. The premium processing requires the USCIS to determine a decision within 15 days after receiving the petition.
The decision can be approval, RFE notice, or even denial notice. However, if USCIS does not make a decision within 15 days after receiving the petition, it will refund the premium processing fee of $1225.
In our experience, we rarely see USIC refund the premium processing fee.
3. I-485 adjustment of status application
I-485 application for adjustment of status is the last step in applying for the green card.
After the approval of I-140, the applicant can submit the I-485 application as his/her priority date becomes current. The applicant can also start submitting the application for EAD and advance parole concurrently with the submission of the I-485 application.
Note: If the applicant is outside of the U.S., he/she can choose to go by consular processing to obtain the green card instead of the I-485 adjustment of status application.
Things to be noted: dates for filing is determined not by the applicant’s nationality but the country of birth. For example, Mr. X was born in China but holds Australia’s passport. Therefore, according to the country of birth principle, Mr. X would have to go by the standard for the applicants born in China in determining whether his priority date becomes current.
Also, there is another important point in immigration law: cross chargeability: In certain situations, an applicant may benefit from the charging of their visa to their spouse's or parent's country of birth rather than their ownFor example, Mr. X was born in China and his spouse was born in Vietnam. Because priority date for applicants born in Vietnam is current, therefore Mr. X can take advantage of his spouse’s country of birth and immediately submit the I-485 application.
At the same time, USCIS has launched a new policy adding screening interviews to the process of EB-1/2/3 business immigration green card application. For more information, please read our article “Trump messed up again! Immigration applicants, get ready to brace the interview.” Note: the interview is not complicated, the applicant only needs to answer honestly the questions related to the position, etc.
When you have submitted the I-485 application and have passed the interview, then you will be able to obtain the green card. At this time, the employer should also pay the employee salary accordingly to the offered wage listed on the certified PERM 9089 form.
The process of obtaining a green card can be an arduous journey, and we wish all applicants the best of luck in their green card applications!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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