Green Cards through Employment: A Guide for Employers
Having trouble finding qualified employees? Consider sponsoring a foreign worker for a green card.
Finding reliable, qualified employees can be challenging. Many U.S. businesses struggle to fill positions despite actively recruiting American workers. If your company has a permanent job opening and cannot find qualified U.S. workers, sponsoring a foreign worker for a green card may be a solution. Unlike temporary work visas, such as the H-1B, an employment-based green card allows a foreign worker to live and work permanently in the United States without having to renew a temporary visa.
Employers can sponsor foreign workers for many different positions, including:
Engineers and software developers
Chefs and restaurant managers
Machine operators and skilled tradespeople
Truck drivers and mechanics
Administrative and office employees
Caregivers and nannies
Business professionals and managers
A job does not necessarily require a college degree to qualify for green card sponsorship. Positions requiring specialized skills, experience, or even limited training may qualify. The key is that the employer has a genuine, permanent, full-time job opportunity and is willing to complete the required sponsorship process.
How Does Employment-Based Green Card Sponsorship Work?
For most employer-sponsored green cards in the EB-2 and EB-3 categories, the process involves three main steps:
PERM Labor Certification: The employer demonstrates that it has tested the U.S. labor market and cannot find qualified, available U.S. workers for the position.
I-140 Immigrant Petition: The employer asks USCIS to approve the foreign worker for an employment-based immigrant visa.
Green Card Application: The foreign worker applies for permanent residence, either in the United States or through a U.S. consulate abroad.
Let's look at each step.
Step 1: PERM Labor Certification
The first step is generally obtaining a Permanent Labor Certification (PERM) from the U.S. Department of Labor (DOL). The purpose of PERM is to protect U.S. workers by ensuring that the employer has offered the position to qualified U.S. applicants before sponsoring a foreign worker. The employer must demonstrate that there are no qualified, willing, able, and available U.S. workers for the position and that hiring the foreign worker will not negatively affect the wages or working conditions of similarly employed U.S. workers.
The PERM process has three main stages.
A. Determining the Required Wage
Before beginning recruitment, the employer requests a Prevailing Wage Determination from the Department of Labor. The government establishes the minimum wage the employer must offer based on factors such as:
Job duties and responsibilities
Minimum education and experience requirements
Geographic location of the job
Nature of the occupation
For example, the required wage for a software developer in Detroit may differ significantly from the wage for a chef in Grand Rapids. The employer must be willing and financially able to pay at least the required wage when the sponsored employment begins.
B. Recruiting U.S. Workers
Once the job requirements and wage have been established, the employer must advertise the position and give qualified U.S. workers an opportunity to apply. Depending on the occupation, recruitment may include:
Posting the job with the State Workforce Agency.
Advertising in a newspaper.
Posting a notice at the workplace.
Advertising on job-search websites or the employer's website.
Using other appropriate recruitment methods.
The specific advertising requirements depend on whether the position is considered professional or nonprofessional under Department of Labor regulations.
What happens if a U.S. worker applies?
The employer must review applications and consider candidates in good faith. If a qualified, willing, able, and available U.S. worker applies for the position, the employer generally cannot proceed with PERM sponsorship based on that recruitment. However, the employer is not required to hire someone who does not meet the position's legitimate minimum requirements. Our firm works with employers throughout recruitment to ensure that the advertisements, application reviews, interviews, and documentation comply with Department of Labor rules.
C. Filing the PERM Application
After recruitment is completed, and assuming no qualified, available U.S. worker has been identified, we prepare and file the PERM application with the Department of Labor. The application describes the job, its requirements, the offered wage, the foreign worker's qualifications, and the recruitment process. The Department of Labor may:
Approve the application: The employer can move forward with the immigrant petition.
Request an audit: The employer must provide documentation demonstrating compliance with recruitment and other PERM requirements.
Deny the application: Depending on the reasons for denial, the employer may have options to request reconsideration or review.
The employer must maintain detailed records of the recruitment process in case the Department of Labor requests them.
How Long Does PERM Take?
PERM is typically the longest part of the employment-based green card process. The total timeline includes obtaining the prevailing wage, conducting recruitment, and waiting for the Department of Labor to review the application. The process can take two years or longer, depending on government processing times and whether the application is audited. Because processing times frequently change, we provide clients with updated estimates when beginning their cases.
Step 2: I-140 Immigrant Petition
After the Department of Labor approves the PERM application, the employer files Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). The approved labor certification must generally be submitted to USCIS within 180 days. At this stage, USCIS focuses on two important questions.
Can the Employer Afford to Pay the Offered Salary?
The employer must demonstrate its ability to pay the salary offered in the PERM application, beginning on the PERM filing date. Depending on the company's circumstances, evidence may include:
Federal business tax returns
Financial statements
Annual reports
Payroll records showing wages already paid to the foreign worker
Other relevant financial documentation
A business does not necessarily need to show a large profit to qualify. USCIS considers specific financial measures, and in appropriate circumstances, additional evidence may support the company's ability to pay.
Does the Foreign Worker Meet the Job Requirements?
The foreign worker must demonstrate that they possessed the required education, training, and experience by the applicable qualifying date, generally the date the PERM application was filed. For example:
Education may be documented through diplomas, transcripts, and educational evaluations.
Work experience is generally documented through letters from previous employers confirming employment dates, job duties, and relevant experience.
Once USCIS approves the I-140 petition, the foreign worker can proceed toward permanent residence when an immigrant visa is available.
Step 3: Applying for the Green Card
The final step is obtaining permanent resident status. The process depends primarily on where the foreign worker is located.
Option A: The Employee Is Already in the United States
If the employee is in the United States and meets the eligibility requirements, they may apply for adjustment of status by filing Form I-485 with USCIS. Depending on the circumstances, the employee may also be eligible to apply for:
Employment authorization while the green card application is pending.
Advance parole to permit certain international travel while the application is pending.
An approved I-140 petition does not automatically authorize someone to remain or work in the United States. Eligibility for adjustment of status and continued lawful presence must be evaluated separately.
Option B: The Employee Is Outside the United States
If the employee lives abroad, the case generally proceeds through the National Visa Center and a U.S. embassy or consulate. The employee submits an immigrant visa application (Form DS-260), provides supporting documentation, and attends a consular interview. After the immigrant visa is issued, the employee can travel to the United States and become a lawful permanent resident upon admission.
When Can the Employee Receive the Green Card?
The timing depends on the employment-based category, the employee's country of chargeability, and immigrant visa availability. Some applicants may proceed relatively quickly after I-140 approval, while others face additional waiting periods. We evaluate these issues before beginning sponsorship so employers and employees understand the likely timeline.
Frequently Asked Questions
Can a small business sponsor a foreign worker?
Yes. There is no general requirement that a company have a particular number of employees or generate a minimum amount of annual revenue. Small businesses, including family-owned companies, may qualify if they have a legitimate permanent job opportunity, can demonstrate the required ability to pay, and comply with the sponsorship requirements.
Does the employee need to have a college degree?
No. Employment-based green cards are available for positions requiring different levels of education, training, and experience. For example, the EB-3 category includes:
Professionals: Positions requiring at least a bachelor's degree.
Skilled workers: Positions requiring at least two years of qualifying training or experience.
Other workers: Positions requiring less than two years of training or experience.
Not every occupation qualifies under every category, and the actual requirements of the position determine the appropriate classification.
Can an employer sponsor someone who is currently outside the United States?
Yes. The foreign worker does not need to be physically present in the United States when the employer begins the PERM process.
Can an employer sponsor an existing employee?
Yes. An employer can sponsor someone already working for the company, including an employee currently holding H-1B or another temporary immigration status. However, the employer must follow the required recruitment process, and special rules may apply when the employee gained qualifying experience with the sponsoring company.
Does the employer have to wait until the green card is approved before hiring the employee?
Not necessarily. If the foreign worker already has valid employment authorization, they may be able to work for the sponsoring company while the green card process is pending. However, filing a PERM application or I-140 petition does not, by itself, authorize employment in the United States.
Does the employer have to pay the employee's immigration expenses?
The employer must pay the costs associated with obtaining the PERM labor certification, including required recruitment expenses and related attorney fees. Different rules apply to expenses associated with the I-140 petition and the employee's green card application. We explain these requirements before starting the process.
Is the employer required to keep the employee forever?
No. The employer must offer a genuine, permanent, full-time position and intend to employ the foreign worker in that position. Likewise, the foreign worker must genuinely intend to accept the offered employment. However, permanent employment does not mean that either party is required to maintain the employment relationship indefinitely.
How Can We Help?
Employment-based green card sponsorship requires careful planning, particularly when establishing job requirements, conducting recruitment, documenting the foreign worker's qualifications, and demonstrating the employer's ability to pay.
At Palmer Rey PLLC, we assist employers throughout the process, from evaluating whether a position qualifies for sponsorship to preparing the PERM labor certification, filing the I-140 immigrant petition, and assisting the foreign worker with the final green card application. Whether you are a small business looking to hire your first foreign employee or an established company seeking to retain valuable international talent, we can help you understand your options.
While the process is lengthy and complex, our office is familiar with the nuances of Permanent Labor Certifications. To begin filing a PERM application for your employee, click here to schedule a consultation. Either prior or after the consultation, we will need you to complete this PERM questionnaire.