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ANSWERS TO QUESTIONS ABOUT EMPLOYMENT BASED PERMANENT RESIDENCE REQUIRING LABOR CERTIFICATION

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Q: My wife currently holds H-1B status and her employer is interested in hiring her permanently in the United States. She has a Bachelor’s Degree. What are the employment preference categories?
A: The employment based (EB) categories that at available for immigration are divided into five subcategories. They are: First Preference (EB1) category is for aliens of extraordinary ability, outstanding researchers and professors. Second Preference (EB2) category is for members of the professions holding advanced degrees or Persons of Exceptional Ability. Third Preference (EB3) category consists of Skilled Workers, Professionals and other workers. The remaining two categories are EB4 for religious workers and certain special immigrants and EB5 for investment green cards. In your wife’s case, depending on her degree and experience, the employer will most likely have to file for her under EB2 or EB3. It is advisable for the employer to consult with an immigration attorney to decide which preference category will work best for your wife’s situation.
Q: What is PERM labor certification?
A: The employment green card process begins with the PERM Labor Certification. PERM Labor Certification is required for most employment based second preference (EB2) and all third preference (EB3) immigrant petitions. To file PERM Labor Certification (ETA Form 9089), the petitioning employer must first obtain what is known as a prevailing wage determination for the specific job from the Department of Labor. Once the prevailing wage has been determined, your employer must then perform various recruitment activities to demonstrate that there are no qualified U.S workers willing and able to take the job. Once these have been completed, the PERM Labor Certification for the prospective employee can then be filed with the Department of Labor. The Department of Labor will certify that no qualified U.S. workers are available for the specific job with the employer. The Labor Certification must be certified before the employer is able to file the I-140 Petition for permanent residence for the prospective employee.
Q: What is required to apply under EB2 Preference Category?
A: Typically, you must first have an approved PERM Labor Certification unless you are applying under the National Interest Waiver category. Under EB2 you must also have an advanced degree or a bachelor’s degree and at least five years progressive experience in the profession. In addition, the qualification you have must be one that is warranted as a minimum requirement for the designated job. If you are possess ‘exceptional ability; meaning having a degree of expertise significantly above that ordinarily encountered, the Labor Certification is waived. Your exceptional ability will be determined by factors such as the type of degree you hold, your extensive experience in the particular field, recognition for your achievements including contributions to your industry or field etc.
Q: My employer’s PERM has already been approved. Can I now file for permanent residence?
A: Before you can file for permanent residence (adjustment of status to permanent resident), your employer must first file a Form I-140 Petition to classify you as an Immigrant Worker. You can file the application to adjust status concurrently with the I-140 petition only if your priority date is current at the time. If it is not current, then your employer must only file the I-I40 petition and you have to wait until your priority date becomes current before you can file your adjustment application. For PERM Labor Certification cases, the priority date is the date the PERM Labor Certification was received by the Department of Labor. The waiting period for the priority date to be current depends on your preference classification (whether EB2 or EB3) and your country of chargeability.
Q: My case was filed under EB1 Preference Category and did not need PERM Labor Certification. What is my priority date if I my case did not need a PERM Labor Certification?
A: You priority date is the date when your immigrant petition was filed. For EB1, it is the date when your Form I-140 was filed.
Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.

My Bio
Sharlene Sharmila Richards is a licensed Immigration lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. You may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.


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