One way for an immigrant to get a U.S. green card (lawful permanent residence) is to have an employer request one in connection with a job offer. This is, however, a lengthy and difficult process. It routinely takes at least a year or more, and in fact many years for some workers.
There are also federal limits as to how many employer-sponsored green cards the U.S. government will issue each year (which is part of the reason for the long waits).
U.S. Law Protects U.S. Workers
The first thing to understand is that U.S. immigration law is not meant to help you get a work-based green card, nor to help your prospective employer. The rationale behind this process is to give U.S. citizens, green card holders, and other lawful residents the first right to U.S. jobs. The aim of the process is to make sure that no U.S. worker is qualified, willing, and available to accept the job for which the immigrant is applying.
Some exceptions to the labor certification—and in some situations the job offer—requirement are made for highly qualified, in some cases world-renowned professionals or others at the top of their field.
Employer's Steps in Obtaining an Employment-Based Green Card
As a non-citizen interested in a U.S. employment-based green card, your first step is normally to obtain a job offer from a U.S. employer. Or perhaps you're already working for a U.S. employer on a temporary visa (such as an H-1B for specialty technical workers), and your employer wants to (or is willing to) make your stay in the U.S. permanent.
The next step is for the employer to complete what's known as a "labor certification" on your behalf. This is itself a prerequisite to your applying for a green card; no one will have even contacted the U.S. immigration bureaucracy yet.
Labor certification, commonly known as PERM, is a multi-stage process undertaken by the employer, not the immigrant. The employer must prove, using a system called Program Electronic Review Management (PERM), that that no U.S. worker can or will fill the position the employer is offering, at least for the wage or salary the employer is willing to pay (which must be a fair wage, based on prevailing standards within the industry).
PERM requirements involve tasks like running help-wanted advertisements in widely read media for a certain period of time, posting the job on the Internet, attending job fairs, contacting employment agencies, reviewing resumes, and interviewing prospective job applicants.
The employer must make an fair and honest effort to recruit and consider U.S. candidates for the job. Creating artificial barriers that mainly favor the immigrant (such as, for example, "We need a physical therapist who is bilingual in Italian") will be frowned upon if it turns out the job doesn't actually require, say, speaking Italian to clients.
The process can move forward only if the employer successfully proves that the company took all these steps but failed to find a U.S. worker willing to take the job. The company must submit its proof to the U.S. Department of Labor (DOL) using ETA Form 9089, Application for Permanent Employment Certification.
After the DOL approves the employer's PERM application (which often takes several months), the company must turn to the portion of the process involving U.S. immigration authorities, and file what's known as an I-140 petition, or Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS).
This involves proving that the business can afford to pay the wage or salary that it has offered the immigrant. Once USCIS has approved the I-140, it's possible you will be put on a waiting list, depending on what category your employer petitioned for you in (which depends on things like your skills level and the type of job and how high the demand for green cards is in that category).
Your place on the waiting list (your "Priority Date") will depend on when your employer first filed the Labor Certification. The State Department publishes the Priority Dates of people who are currently at the top of the waiting list and eligible to move forward with applying for a green card in its monthly Visa Bulletin.
Foreign Worker's Steps in Obtaining Employment-Based Green Card
Finally, after the I-140 has been approved and your Priority Date is "current," you may complete your portion of the application for U.S. lawful permanent residence.
If you're lawfully in the U.S., you will likely be allowed to file an I-485 an Application to Adjust Status, and do all your processing without leaving the country. Overseas immigrants (as well as some who are currently be in the U.S.) will go through what's called "consular processing." This involves submitting paperwork to and attending an interview at a U.S. consulate in the immigrant worker's home country.
After all the paperwork is approved, the worker should be granted an immigrant visa (if needed for U.S. entry) and a green card.
Questions for Your Immigration Lawyer
This article provides a brief, general introduction to the topic of employer-based green cards. For more personalized information, please contact an immigration lawyer. You may want to ask the lawyer such questions as:
I'm in the U.S. illegally. Does that create an inadmissibility problem if I want to get a green card through a U.S. employer?
I'm doing high-level scientific work. Will this be enough for me to avoid labor certification?
Would it be better for me to start by finding an employer who will help me get a temporary work visa and then consider green-card sponsorship later?
How long will I have to be on hold before I know whether my prospective employer can find an American worker for the job it wants to hire me for?