If you are an Oklahoma employer who is looking to sponsor a foreign national for an employment-based permanent residency, this article is for you. My name is Vivid Niroula and I am an immigration attorney based in Oklahoma City. Here is the nitty gritty on the employment-based green card.

U.S. immigration law allows several avenues through which a foreign national may qualify for a permanent residency, also known as a green card. A non-citizen may qualify for a green card through marriage to a U.S. citizen or a permanent resident, a job offer from a U.S. business, asylum, or a diversity visa. Among the various ways to get permanent residency, we will focus on the employment-based avenue where you, a U.S. employer may sponsor a qualified non-citizen employee for a green card.

U.S. Congress has categorized five groups of employment-based visas, ranging from the first preference category(EB1) to the fifth preference category(EB5) with an annual numerical visa limit. The total number of visas given out each year under all five employment-based category is 140,000, where the first three categories receive 40,000 visas each, and the fourth and the fifth receives 10,000 visas each. You must be wondering what the five employment categories mean.

Since the first three preference categories cover most of the visas awarded under the employment-based category, we will only discuss the first(EB-1) through third(EB-3) preference categories in this article. Let’s dive right in.

Other articles on the topic,

What are the employment-based green card preferences known as EB1, EB2, and EB3?

If you are a U.S. employer who seeks to sponsor a foreign employee for a green card, then you must present a job offer to the foreign national under one of the five employment-based preferences. Please note that under some of these categories, an offer for employment by the employer may not be required or such an offer may be waived.

  • What is the first employment-based preference category EB-1?

The first employment based preference category is set aside for priority workers and under which 40,000 visas are allotted annually. Priority workers include multinational managers or executives, outstanding professors and researchers, and persons with extraordinary abilities.

To qualify under the multinational manager or an executive, the employee must be a transferring employee from an overseas affiliate, branch, subsidiary, or parent of the sponsoring U.S. employer. A manager of a consulting firm based in London who transfers to the U.S. branch in Oklahoma City qualifies under this category, for example. The prospective U.S. employer must file a Petition for Alien Worker, a Form I-140, to sponsor the manager.

To qualify under the outstanding professor or a researcher, the employee must have international recognition as outstanding in the academic field and the prospective employer must be a U.S. university or institute of higher education or a private employer that employs at least three full-time researchers (not counting the beneficiary). A physics professor who is currently employed by a German university and internationally recognized as outstanding in his field and who has a job offer from the University of Oklahoma qualifies under this category, for example. The University of Oklahoma must file a Petition for Alien Worker, a Form I-140, to sponsor this professor.

To qualify under the persons of extraordinary ability, the foreign national must be a “person of extraordinary ability” in the Sciences, Arts, Education, Business, and athletics. A  painter who is a citizen of India and demonstrates that she is extraordinary in her field through prestigious awards, membership in associations in the field, etc. may qualify under the category. Please note that under this category, the alien beneficiary is not required to be sponsored by a U.S. employer. Put another way, the alien beneficiary with extraordinary ability does not need a job offer from a U.S. employer to apply for a green card. However, the alien must prove that she is coming to the U.S. to continue working in her area of expertise.

In most cases, the employment-based permanent resident sponsorship must go through the PERM process, which consists of a labor certification stage, Petition I-140 stage, and Adjustment of Status or Consular Processing stage. PERM process exists to test the U.S. labor market and ensure that no U.S. workers are disadvantaged or displaced by the alien worker. One of the striking features of the employment-based sponsorship under the EB-1 as compared to EB-2 and EB-3 is that no labor certification is required for the EB-1 category.

  • What is the second employment-based preference category EB-2?

The second employment-based preference category is set aside for persons of exceptional ability, and advanced-degree professionals, under which 40,000 visas are allotted annually. Under the EB-2 category, an employer sponsoring an alien beneficiary must present a job offer and go through a labor certification unless it is waived under national interest.

Advanced-degree professionals are individuals who hold degrees beyond a bachelor’s degree, or who have a bachelor’s degree with five years of progressive experience in the profession. A software engineer who is a citizen of Pakistan and has a master’s degree in software engineering, or a bachelor’s degree in software engineering with five years of progressive experience in the software field at an IT firm in Pakistan qualifies under this category, for example. The prospective U.S. employer must file a Petition for Alien Worker, a Form I-140, to sponsor the engineer.

Persons with exceptional ability in the areas of sciences, arts, or business qualify under this category. Exceptional ability means a degree of expertise that is significantly above the one encountered in science, arts, or business and which in the future will greatly benefit the U.S. academic, social, and economic interests. A wildlife biologist who is a citizen of Brazil and a member of related associations in the field, with a doctorate in  Brazilian Puma behaviors and well recognized for her research, qualifies under this category, for example. The prospective U.S. employer seeking to hire her must file a Petition for Alien Worker, a Form I-140 unless it is waived under national interest.

  • What is the third employment-based preference category EB-3?

The third employment-based preference category is set aside for persons with bachelor’s degrees, skilled workers, and unskilled workers, under which 40,000 visas are allotted annually. Under the third preference employment category (EB-3), the prospective employer must offer a job to the alien and go through the labor certification process.

Professionals are individuals whose profession requires at least a bachelor’s degree from a U.S. College or University or its foreign equivalent. An architect who is a citizen of India and has a bachelor’s degree in the field qualifies under this category, for example. A U.S. architect firm seeking to hire the alien must file a Petition for Alien Worker, a Form I-140, to sponsor the architect.

Skilled workers are individuals whose job is not seasonal or temporary and requires a minimum of 2 years of work experience. Some examples include chefs, fashion designers, supervisors, etc. Unskilled workers are individuals who can fill a position that requires less than two years of work experience. Some examples include dishwashers, janitors, caretakers, etc.

Please note that in addition to the numerical limitation on the total visa allotted under a specific preference category, there is a limitation subject to each country. No more than 7% of the numerically limited immigrants can be from the same country. Countries like India and China have such large populations that the demand for visas far exceeds the 7% of the visas allotted to Chinese and Indian citizens, resulting in longer wait times.

What is a PERM process that an employer must go through to sponsor an alien worker for a green card?

You now have classified the alien worker under one of the three appropriate categories, what now? Generally speaking, under both the EB-2 and EB-3, a prospective employer is required to go through a PERM process unless waived in the national interest. PERM is a three-step online process that includes labor certification, filing of I-140, and adjustment of status or consular processing.

What is the first step in sponsoring an employment-based green card for an alien worker?

Step 1: Labor certification is a process where the Department of Labor (DOL) certifies the job position offered to the alien worker after determining that the recruitment of the alien does not disadvantage or displace the U.S. job market or employees. Put another way you, the prospective employer, must show that there are no willing, able, and qualified U.S. workers available to fill the position. You must start by drafting the job requirements and the pertinent qualifications.

Then file Form ETA-9141, an application requesting a prevailing wage determination. A prevailing wage is an average wage paid to a similarly situated worker in a specific occupation in the area of employment. You, the prospective employer, must agree to pay the alien worker at least the prevailing wage determined by the DOL. After you accept the wage requirement, it’s time to start the recruitment process.

The recruitment process is nothing but a test to determine that there are no qualified, willing, and able U.S. workers to fill this position. There are 3 mandatory methods to advertise the job opening: placing a job offer with the State Workforce Agency, advertising with a local Sunday paper, and posting of notice of filing at the employment location. You can pick additional methods of an advertisement from a list of acceptable options.

After the recruitment process is complete and no otherwise qualified and willing U.S. worker is available to fill the position, it’s time to file Form ETA 9089 Application for Permanent Employment Certification. Upon approval of the ETA 9089, you the employer will receive an email notification from the DOL.

What is the second step in sponsoring an employment-based green card for an alien worker?

Step 2: After the ETA 9089 has been approved, it’s time to file Immigrant Visa Petition I-140 on behalf of the alien worker. Form I-140 is a petition filed by you the employer, on behalf of the foreign national worker stating that the employee meets the requirements of the position as specified on the Labor Certification and that you can pay the required wages to the employee. Once I-140 is approved, the priority date of the alien worker is solidified.

The priority date is the date on which the immigration application is successfully submitted, also used to set the beneficiary’s position on the visa queue. The alien worker’s position in the visa queue is a significant factor in the whole process of determining the total wait times, even more so if the worker is from a Country with high immigrant visa demands.

What is the third step in sponsoring an employment-based green card for an alien worker?

Step 3: Adjustment of status. Once the I-140 has been approved, now the alien worker may apply for his/her green card. If the alien worker is physically present in the U.S. he/she may file Form I-485, Application to Register Permanent Residence also called adjustment of status. Filing Form I-485 also called adjustment of status is the final stage in the long process of sponsoring an alien worker for their employment-based green card. If the alien worker is currently living abroad, then they must apply for an immigrant visa by completing Form DS-260 and appear for a visa interview at the U.S. Embassy or Consulate in their home country.

Who can sponsor employment-based green cards?

Any U.S. business that possesses a valid Federal Employer Identification Number (FEIN) can sponsor an alien worker and petition for permanent residence, also known as the green card, as long as they satisfy every requirement under the PERM process. To satisfy the PERM requirements you, the employer, must go through the process of labor certification and file an I-140 petition, and the alien worker must apply to adjust status or go through a visa interview at a U.S. Embassy or Consular.

How much does it cost to sponsor an alien employee for a green card?

There is no fee associated with the labor certification process, which means that you the employer, do not have to pay for prevailing wage determination (ETA-9141) or permanent employment certification (ETA-9089). However, there is a fee of $700 associated with filing Form I-140 Petition. Generally, the employer pays the $700 fee, however, there is no law against passing the cost of the fee to the employee. Similarly, there is a fee of $1225 associated with filing Form I-485, which includes biometric fees.

Generally, the employer pays the $1225 fee, however, you the employer are not precluded from passing the cost of the fee to the employee. Please note that in addition to the governmental fees, the attorney fees to sponsor an employment-based green card for an alien worker may range from $5000 to $7500, and the advertising fee from $1000 to $4000.

Immigration lawyer in Oklahoma City.

Vivid Niroula is an immigration lawyer and a visa lawyer based in OKC who has a solid understanding of immigration laws. He provides a personalized and exceptional service making your search for a green card attorney in Oklahoma less daunting. If you are an Oklahoma employer looking for an immigration attorney to help you file a petition to sponsor an alien worker for a green card, call the Law Office of Vivid Niroula at (405) 456-9250, or contact us by filling out the Contact Us Form.