Green Card Processing under EB-2
Porter Law Office, LLC guides employers and employees in Columbus, Ohio and throughout the United States through the complicated procedures involved in the PERM green card process. The typical method by which employers permanently hire foreign nationals is to secure temporary work visas—such as H-1B visas—and then sponsor that worker for a green card through PERM. If you have an advanced degree, you may eligible to fast-track your green card processing through the EB-2 category.
This article addresses the legal framework of the EB-2 category for permanent residence—that is, the employment-based adjustment of status application filed under Section 203(b)(2) of the Immigration and National Act (the “INA”).
Legal Framework for EB-2 Visa
You may be eligible for an EB-2 employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.
Subparagraph (A) of section 203(b)(2) of the INA makes immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” Under subparagraph (A), immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.”
Labor Certification (PERM) Required
Proving there are not sufficient U.S. workers able, willing, qualified and available requires a true test of the U.S. labor market through a recruitment process, typically guided by your legal counsel’s office.
Before hiring a foreign national under the EB-2 classification, an employer must first obtain a permanent labor certification from the United States Department of Labor (“DOL”) under section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) (2012). See also 8 C.F.R. § 204.5(k)(4)(i) (2016). A labor certification demonstrates that DOL has determined that there are not sufficient workers who are able, willing, qualified, and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
In its labor certification application, the employer must list the position’s job requirements consistent with what is normally required for the occupation. See 20 C.F.R. § 656.17(h)(1) (2016). Moreover, the job requirements described on the labor certification application must represent the actual minimum requirements for the job opportunity. See 20 C.F.R. § 656.17(i)(1). That is, the employer may not tailor the position requirements to the foreign worker’s qualifications; it may only list the position’s minimum requirements, regardless of the foreign worker’s additional skills that go beyond what is normally required for the occupation. The employer must then test the labor market to determine if able, willing, or qualified U.S. workers are available with the advertised minimum qualifications. If such U.S. workers are found, the employer may not hire the foreign worker for the position, even if the foreign worker clearly has more skills (beyond the advertised qualifications). If the employer does not identify such U.S. workers and DOL determines that those workers are indeed unavailable, DOL will certify the labor certification. After securing the DOL-approved labor certification, the employer may then file an I-140 petition with DHS requesting the immigrant classification.
Contact an Experienced Columbus Immigration Lawyer
EB-2 PERM Representation
The experienced employment immigration lawyer at Porter Law Office, LLC has in depth experience with the EB-2 PERM immigration process. By hiring Porter Law Office, LLC, you be partnering with an experienced employment immigration lawyer who understands what it takes to overcome the legal hurdles, bureaucratic hassles, and frustrating paperwork associated with the PERM process. Porter Law Office, LLC is conveniently located in Gahanna just outside Columbus, Ohio. If you need help with the PERM process, or any other immigration issue, contact Columbus employment immigration lawyer Matthew R. Porter today for free consultation to discuss your options.