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How to obtain residency or green card through employment

February 24th, 2022

How to obtain residency or green card through employment:

Individuals eligible for an employment Green Card or Residency, generally fall within one of the following categories:

1. An executive of an international company or a person of Extraordinary Ability;
2. A qualified employee sponsored by a US employer, or
3. A person making a substantial investment in the US that will generate 10 full time jobs for US workers.

Generally, the person must have an employer who is willing and financially able to petition for them, meaning the employer is able to pay the prevailing salary for the position; unless the person falls within the category of company owner, executive or alien with extraordinary ability, who do not need to go through the Labor Certification Process (LCA).

In addition, owners and aliens of extra ordinary ability can petition for residency themselves without an employer.

For most employment residency petitions, the Labor Certification process, is generally the first step in obtaining an employment based green card. Through this process the employer must demonstrate:

1. That the alien employee will not be taking any jobs from U.S. workers, and
2. That the salary and conditions of the job offered are the prevailing (or most common) in the industry and location where the job will be performed, and therefore will not negatively impact the wages and labor conditions for U.S. workers.

The labor certification process entails:

• requesting from the government the prevailing wage in the industry for the job in the location to be performed,
• as well as following the recruiting guidelines to see if there are any qualified American workers that want the job. If no qualified American worker is willing or able to accept the job, the Department of Labor will certify or approve the LCA or Labor Condition application.

Once the LCA is approved, your employer may submit an Immigrant Petition for Alien Worker, Form I-140 within 180 days.

In order to file the I-140 application, the petitioning employer must show clear evidence of the company’s ability to pay the prevailing wage. This is usually done through the company’s Federal Tax Returns.

When the priority date of the LCA is current, the employee may file the Adjustment of Status Application, Form I-485, if they are in the US, or process the employment residency petition at a US consulate if the employee is abroad.

Eligibility requirements

To file for Adjustment of Status, the employee must meet the eligibility requirements for adjustment, which include: being in lawful immigration status at the time the adjustment of status application is filed and not having violated any of the conditions of his/her non-immigrant visa, or be eligible for the 245i law.

In some instances, individuals can apply for adjustment of status at the same time that the I-140 petition is filed. The I-485 will not be adjudicated if the employer’s Petition for Alien Worker I-140 is not approved.

If you want the help of our employment immigration lawyers in preparing your residency petition based on employment, and you are in the Massachusetts or New England area, please contact our office at: (617) 303-2600.