Getting a Green Card: Employment-Based Immigration

Every year, thousands and thousands of people enter the U.S. to find work. Some people enter the country illegally. Others come in legally through a non-immigrant visa (for example, a tourist or student visa), and then violate the terms of the visa by, for example, overstaying or finding work “under the table.” Many Americans resent foreign citizens who seek work illegally in the U.S. as “lawbreakers” and see their illegal status as sufficient reason for deportation. If there is a legal process for working in the U.S.—the argument goes—why should the U.S. put up with illegal immigration?

An important fact, often forgotten in this discussion, is that most people in the world probably would not qualify to immigrate to the U.S. As mentioned in our earlier blog entries, federal immigration law dictates that foreign citizens must fit into a particular immigration category to be able to legally enter, live, and work in the U.S. For all the talk about how “globalized” our 21st-century world is, immigration amongst most countries is still highly regulated.

Immigration based on employment is no different. Although there are several types of employment-based immigrant visas, they are (1) limited in number, and (2) usually require both the foreign national and the U.S. employer to meet very specific requirements. Generally, the U.S. employer must file the petition on behalf of the foreign national, and show that there are no U.S. workers available to fill the particular position for which the foreign national is being hired. This is not an easy burden to meet. The main employment-based immigrant categories are:

EB-1: Multinational executives, outstanding professors and researchers, and persons of “extraordinary ability” in the sciences, arts, education, business, or athletics.

EB-2: Foreign nationals with an “advanced degree” (Masters’ or higher) or an “exceptional ability” in the sciences, business, or arts. Usually, EB-2 immigrants must also have a job offer from a U.S. company.

EB-3: Professional workers with a Bachelor’s degree (or foreign equivalent), “skilled workers” for positions that require at least two years of training or experience, or “unskilled workers” for positions that require less than two years training or experience. All EB-3 immigrants must also have a job offer from a U.S. company.

The EB-4 and EB-5 categories are slightly different. EB-4 immigrants are considered “special immigrants,” and include religious workers and persons services as translators with the U.S. Armed Forces. The EB-5 category of immigrants is perhaps the most controversial and deserves its own full blog entry. Rather than getting a Green Card through a job offer, EB-5 immigrants get a Green Card through investing money (between $500,000 and $1mi) in a U.S.-based enterprise that creates U.S. jobs.

Note that these are immigrant visa categories. There are also several non-immigrant visas that authorize foreign nationals to work in the U.S., which are limited in time and usually do not provide a path to citizenship.

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Rosi & Gardner, P.C.

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