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There are several ways to obtain lawful permanent residence in the United States, commonly referred to as a ‘green card.’ The most common method of obtaining permanent residency is through an employer who sponsors a Permanent Labor Certification (EB-2 or EB-3). The Permanent Labor Certification (“PERM”) is the first of a three-part green card process.

The three steps to becoming a permanent resident through employment include:

  • Permanent Labor certification or “PERM” (Form ETA 9089) filed with the Department of Labor (DOL)
  • Petition for an Immigrant Worker (Form I-140) filed with U.S. Citizenship and Immigration Services (USCIS)
  • Adjustment of Status within the U.S. (Form I-485) filed with USCIS or Consular Processing of an Immigrant Visa through a U.S. Consulate abroad

The goal of the Permanent Labor Certification process, which is adjudicated by the Department of Labor, is to make sure that foreign workers are not taking jobs from qualified U.S. workers and that if employed, the foreign worker will not adversely impact the wages or working conditions of other U.S. workers in the same occupation. The employer must be prepared to hire the foreign national on a full-time and permanent basis, and there must be a bona fide opening.

When an employer files a labor certification, they must demonstrate:

  • the company will pay the prevailing wage as determined by the Department of Labor (based on the occupation, the level of experience or education required for the position, and the specific geographical location of the job);
  • a good faith effort was made to recruit U.S. workers;
  • no U.S. workers were willing, qualified, able or available to accept the position at the wage for the occupation in the location of employment;

Additionally, the company or organization must show that the minimum requirements to perform the job and responsibilities are not unduly restrictive, or “tailored” to the foreign national. If the requirements for the position are not considered normal for the occupation, the Department of Labor will require the employer to demonstrate why it is a business necessity.

If during the mandated process of recruiting for the position with the company a qualified and available U.S. worker applies for the job and meets the minimum requirements outlined by the employer, the Permanent Labor Certification cannot be certified by DOL.

If the Permanent Labor Certification is certified, it allows the employer to file for an immigrant visa number through Form I-140. The final step in the process is the adjustment of status to lawful permanent residence, which requires the foreign national to file several forms to demonstrate their eligibility and admissibility for lawful permanent residence in the United States.

EB-2 and EB-3 are procedurally identical processes that involve the Permanent Labor Certification, Immigrant Visa Petition (Form-140), and either adjustment of status or consular processing an immigrant visa. EB-2 and EB-3 categories are based on the employer’s minimum requirements for the position that the foreign national will hold, not simply the education and experience of the foreign national.

Qualifications for EB-2 – Members of the Professions Holding an Advanced Degree or Persons of Exceptional Ability:

  • Are a member of a profession that requires an advanced degree, OR
  • Have exceptional ability in the sciences, arts, or business, OR
  • Are seeking a national interest waiver.

Qualifications for EB-3 – Professionals, Skilled Workers, or Other Workers:

  • A professional (i.e., job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession), OR
  • A skilled worker (i.e., job requires a minimum of 2 years training or work experience), OR
  • An unskilled worker (job requiring less than 2 years training or experience)
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