• Hui Zeng, Esq.

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.