Sponsor an Immigrant Worker Through an Employment-Based Visa

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"Coming to the US on an employment-based visa is a complex and difficult process. Most people do not have a clear idea of the different available employment-based visas, their eligibility requirements, and the application process. However, if you are planning on immigrating to the US for work, then it's best to know how to gain US Permanent Resident status."

Written by My Visa Source Team
Published on: Jul 13, 2021

Coming to the US on an employment-based visa is a complex and difficult process. Most people do not have a clear idea of the different available employment-based visas, their eligibility requirements, and the application process. However, if you are planning on immigrating to the US for work, then it's best to know how to gain US Permanent Resident status.

What Is the Process to Obtain US Permanent Residence Through An Employment-Based Visa?

The general process to obtain US permanent residence through an employment-based visa involves the following steps:

Obtaining PERM/Labor Certification:

The first step to gain an employment-based visa is to complete a labor certification application, also known as, Program Electronic Review Management (PERM). This process takes anywhere from 6 months to a year based on where and when your case was filed.

Filing Petition I-140:

The next step is to get approval on your Form I-140, Immigrant Petition for Alien Workers from the US Citizenship and Immigration Services (USCIS). This petition usually takes up to 8 months to be processed, however, your employer can file for premium processing to get a decision within 15 days of the application being submitted.

Filing Form I-485:

The final step in this process is to apply for permanent resident status by filing Form I-485, Application to Register Permanent Residence or Adjust Status.

If approved, you will be allowed to adjust your status from a nonimmigrant to a US permanent resident. Based on the type of your employment-based visa, you will be required to file a different form to adjust your status. If you have applied for an EB-2 Visa or EB-3 Visa, then your US employer has the option of filing both Form I-140 and I-485 at the same time. Filing both forms simultaneously makes you eligible for filing Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document with no additional fee.

What Is the Process to Gain PERM Labor Certification?

The PERM/Labor Certification attests to the fact that there was no U.S worker available to fill the position being offered to the foreign worker. The process to gain PERM certification requires the US employer to make recruitment efforts for the position offered to the foreign worker to demonstrate that they were unable to find a qualified US worker.

The US employer must file a labor certification application to the US Department of Labor (DOL) online to provide necessary information about the job and remuneration being offered based on the prevailing wage rate. The DOL will then provide a “prevailing wage determination” to make sure that the worker is being paid fairly. Only after the employer has received this certification, then they can begin recruitment advertising for the position.

It is the employer’s responsibility to ensure that the advertised position contains all the relevant information including the job description and the prevailing wage determination as issued by the DOL. This process can take anywhere from 4 to 6 months. The employer must also wait for a month after the last advertisement has been made to file the PERM application.

What Is the Process to File Form I-140, Immigrant Petition for Alien Workers?

Once your employer has an approved PERM Labor Certification, they must file the original application with the case filing to the USCIS. The employer must also ensure the USCIS that they are paying the prevailing wage determined by the DOL to the employee. If the employee is not being paid currently, then the employer must demonstrate their ability to pay the prevailing wage in the future.

This can be done by providing their corporate tax returns or any other financial documents that support their ability to pay the prevailing wage eventually. Your employer can file Form I-140 with the USCIS once all the documents are in order. This form can take up to a year to be processed, however, you can also request premium processing within 15 days for an additional fee.

How to File Form I-140 and I-485 At the Same Time?

If you have a current priority date on the Visa Bulletin, then you can file Form I-140 and I-485 at the same time, given you have applied for EB-2 or EB-3 visa categories. If your visa category is not available at the moment, then you will have to file Form I-140 initially and wait for it to be processed.

Once your priority date becomes current, meaning that your visa is available, then you can file Form I-485 at your nearest US consulate or with the USCIS if you are residing in the US.

If you file both at the same time, then it takes over 25 months to be processed. If you have already filed Form I-485, then you have the option of applying for temporary work authorization by filing Form I-765, Application for Employment Authorization.