There are many companies advertising for a faster path to a green card through the employer-sponsored route, which typically means an EB-1, EB-2, or EB-3 visa category. This is appeals to some individuals because the adjudication times are long for the EB-5 visa petition, and the backlog may be longer to apply for a green card. However, before any individual considers these options, one of the most important aspects of an employer-sponsored green card is that there is a bona fide employment by the sponsoring company. Below, we break down the different EB categories and what they legally require to be approvable for a green card.
EB-1: Multinational Manager or Executive
This EB-1 category requires that the individual was employed for at least one year abroad in a qualifying entity in a managerial or executive role, prior to being transferred to the U.S. into a role that is also managerial or executive. To qualify for this, the employer must demonstrate:
- The U.S. and foreign company must have a qualifying relationship.
- The individual must be employed in a managerial/executive role and the role in the U.S. must be managerial/executive in nature.
USCIS will at times request proof that the companies are real and operating, proving they are real entities and are legitimately conducting business. USCIS may also request additional evidence showing that the person was employed/will be employed by the foreign and U.S. companies in a managerial or executive nature. If the company or individuals are not bona fide, it is likely USCIS will discover this during adjudication.
EB-2 or EB-3 PERM Labor Certification
The EB-2 and EB-3 categories require a PERM Labor Certification, meaning the employer must conduct a good faith “labor market” test to confirm there are no qualified and willing U.S. workers to fill the role, and thus the PERM may be filed for an employee. This labor market test includes the company conducting a good-faith recruitment effort to invite U.S. workers to apply for the role. This recruitment effort will include various modes of recruitment, such as the Sunday newspaper, the Statewide Workforce Agency posting, an internal company posting, and three other alternative modes of advertisement of the employer’s choosing.
The job description and the minimum requirements for the role must reflect the absolute minimum requirements for the role, and not just tailored to what qualifications the employee has. For example, if the job is for a junior software engineer, even though the employee has a Ph.D., the role itself would normally require only a bachelor’s degree and one year of experience. The employer in this case cannot list a Ph.D. as the minimum qualification for the role. In addition to the recruitment, the employer must pay at least a certain wage as determined by the Department of Labor, which issues a “Prevailing Wage Determination.” For a green card application based upon an EB-2 or EB-3 PERM, the following timeline must occur:
- The PERM process: includes submitting a Prevailing Wage Request to receive a Determination; recruitment efforts and filing the PERM application with the Department of Labor. The outcome can be an audit or a certification (approval).
- I-140 petition: The employer must file the I-140 petition within a certain period of time and confirm that the job offer exists and the employee will be paid at least the prevailing wage as determined by the Department of Labor. The outcome can be a Request for Evidence or an approval. An RFE may ask for the legitimacy of the company or proof that the company can pay the wage. The employee must also prove that they meet the minimum requirements for this role.
- AOS application: If the priority date is current, the AOS application can be filed, though the employee must be in the job at the time of approval.
The above two categories are the most popular where the industry has seen fraud and false promises of faster adjudication times than an EB-5 petition. While the adjudication times may be faster, as shown above, the burden is high, with USCIS scrutinizing the legitimacy of the company, and the bona fadedness of the job offer.
The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.