The Immigration and Nationality Act, as amended, (INA) enumerates the various ways foreign nationals can achieve temporary or permanent resident status in the United States. Foreign nationals may apply for permanent resident status if they meet the eligibility requirements as defined in the INA and associated regulations. Permanent resident status is frequently referred to as obtaining a “green card”. There is a numerical limitation for each category as determined by the nationality of the foreign worker and the preference category, thereby causing substantial delays for many individuals to complete the “green card” process in some cases.
Employment-based permanent resident visas are categorized by order of preference. The first three preference categories apply to workers of varying skill levels. Generally, individuals with advanced degrees and extensive experience are prioritized over unskilled workers. If your company is considering permanently hiring foreign nationals, a Michigan business immigration lawyer may be able to assist. Our team of knowledgeable attorneys will guide you through this process and determine which preference category might be most suitable for your situation.
The first three employment-based preference categories allow foreign nationals to join the United States workforce on a permanent basis. Most applicants seeking permanent resident status fall into one of three preference categories and require employer sponsorship. Each category has specific eligibility and evidentiary requirements for the company and the worker. The employment-based first preference category, EB-1, is reserved for individuals with extraordinary ability in the sciences, arts, education, business or athletics, multinational executives or managers, and outstanding professors and researchers.
The second employment-based preference category, EB-2, includes foreign nationals who are members of the professions holding advanced degrees or foreign equivalent, and foreign nationals of exceptional ability. To qualify for the advanced degree, the position must require such a degree and the person must possess the degree or equivalent in education and experience. A person can have a Master’s or higher degree in the field or, alternatively, a Bachelor’s degree plus five years of applicable experience. Foreign nationals who have exceptional ability in the arts, sciences, or business who will substantially benefit the United States may also qualify for the EB-2 category.
The third employment-based preference category, EB-3, includes professionals, skilled workers and other workers. Professionals are workers who are members of a profession. The skilled worker category is for a position that requires at least two years of training or work experience. Those workers with less than two years of training and work experience may qualify in the “other worker” category.
Congress created these provisions in the INA to provide businesses with a larger applicant pool while also helping the United States economy grow. The INA and associated regulations reflect the preference for experienced workers that are unavailable in the United States applicant pool. In some instances, an employer must first determine that qualified United States citizens or permanent residents are not available. This means that hiring a foreign worker must not negatively impact American jobs by saturating the market. A skilled lawyer in Michigan could help a business determine which immigration visas they could petition for when hiring foreign employees.
Employers must first determine which preference category is appropriate for the foreign national in question. It is possible that an individual may qualify for more than one category, in which case the employer and attorney can discuss the different options. In some cases, the employer must undertake the labor certification process and first get a determination by the Department of Labor (DOL) that there are no able, willing, qualified and available United States workers to fill the position. Employers must then file Form I-140, Petition for an Alien Worker, with United States Citizenship and Immigration Services (USCIS) for approval of one of the preference categories. The petition must include evidence that the foreign national and sponsoring company meet the eligibility requirements under the applicable sections of the law.
Employers should consider seeking the assistance of a business immigration attorney in Michigan to help with the application process. USCIS will deny petitions that fail to meet the eligibility requirements. Our experienced legal team can assist with the process, and pragmatically respond to any DOL or USCIS inquiries. Late or inadequate responses to agency requests may delay administrative processing time and could result in a denial.
Employers, investors, and others looking to permanently hire foreign nationals should consider seeking guidance from an experienced attorney when dealing with immigration for employees. Our Michigan business immigration lawyers understand the applicable laws and can help your company to determine appropriate options and assist with the application process. For more information about your particular case, call today.