In addition to applying for a green card on their own, foreign nationals can be sponsored by an employer. When an employer sponsors an employee for a green card, that employer signifies the two have an employer-employee relationship and that the employee is qualified for an open job. Taking the necessary steps toward sponsorship helps secure an employee a place in line, or priority date, for obtaining their green card.
The process is multi-step and involves working with both the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS). If you are an employer and considering sponsoring one of your employees for U.S. permanent resident status, there are three considerations to keep in mind: time, money, and obligation.
The process for sponsoring an employee for a green card can be lengthy. The timing for approval varies and depends not only on an immigrant’s employment-based category and country of origin, but also on meeting DOL requirements for permanent labor certification. A good rule of thumb is to allow at least two years for the entire process.
Another timing issue is the remaining amount of time left on an employee’s temporary work visa. Before applying to sponsor an employee, determine the maximum amount of time that employee is eligible to stay in the U.S. It’s important that the employee doesn’t run out of visa extensions before being approved by USCIS for an employer-sponsored green card.
PERMANENT LABOR CERTIFICATION
The first step in sponsoring an employee for a green card is obtaining permanent labor certification from the DOL. This certificate does not certify that the employee is qualified for the position or has been correctly placed in their designated employment-based classification. Instead, it certifies to USCIS that there is no U.S. worker able, willing, qualified, or available to fill the spot in that geographic location. The DOL-issued certificate also signifies that hiring the foreign worker will not negatively affect wages or working conditions of similarly employed U.S. workers.
To qualify for the permanent labor certification, the employer must have made a good faith effort to fill the position with a U.S. worker. The DOL requires that the employer advertise and recruit for the position in the geographic area where the permanent job is located. The employer must also submit jobsite location, job requirements, and job duties to the DOL for a prevailing wage determination. This determination ascertains a common wage for the open position in the given area and helps ensure the foreign worker is fairly paid.
As part of the green-card sponsorship process, the employer is required to pay all costs associated with obtaining the permanent labor certification from the DOL. An employee may not reimburse their employer for any of the costs, including attorneys’ fees or any expenses that the employer incurred for recruiting or advertising for the position.
The employee may pay for subsequent costs, such as filing the I-140 petition which is the next step following receipt of the permanent labor certification. The I-140 is the Immigrant Petition for Alien Worker and is filed by the employer with USCIS requesting employment-based permanent residence for the employee. While the fee is due when the employer files the application, either the employer or employee may pay it.
Once USCIS approves the I-140, the employee may also pay for filing their Form-I-485, application for lawful permanent residence. Filing the Form I-485 is the next step in the process.
In addition to time and money commitments, employers also have obligations to employer-sponsored green-card candidates. The biggest of these is to have a permanent job open for the sponsored employee at the time their green card is issued. It doesn’t have to be the same job the employee held when the employer first began the sponsorship process, but it must be a permanent job position as opposed to a temporary role.
In order to sponsor an employee for permanent residence, the individual must qualify for one of the four employment-based visa categories. These are:
Priority workers. These are individuals with extraordinary abilities in science, art, athletics, or business. Outstanding professors and researchers as well as multinational executives and managers fall into this category.
Professionals with advanced degrees or persons with exceptional ability. Individuals who hold an advanced degree or its equivalent, as well as persons who have exceptional skills that will benefit the U.S. in the arts, sciences, or business fall into this group.
Professional or skilled workers. This category includes skilled and unskilled individuals who supply a skill that is not available in the U.S. as well as professionals with a Bachelor’s degree.
Special immigrants. Religious workers and certain physicians are among those included in this category.
WE CAN ANSWER QUESTIONS ABOUT SPONSORING AN EMPLOYEE
Our attorneys have combined experience of almost 100 years in immigration law and the green card application process. If you are planning to sponsor an employee for a green card, contact us at 404-850-9394.
After consulting with you, we can give you peace of mind that you have taken the correct steps for sponsoring your employee and avoiding issues that could result in delay or denial.