A ‘Green Card’ Crash Course for HR Pros

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Jun 1, 2018

Sponsoring an employee to become a “lawful permanent resident” of the United States – i.e., to become a green card holder – can be a valuable recruiting and retention tool. Many foreign national workers crave the stability that comes with having a green card and, therefore, permanent residency in the United States.

But the green card sponsorship process is complex and nuanced. Here, I’ll outline the big-picture essentials that will give you a sense of what goes into sponsoring an employee for permanent residency. If you’re tasked with leading this process at your company and haven’t been through it before, I strongly recommend working with an experienced immigration law attorney who can guide you.

3 types of work green cards

The United States only issues 140,000 employment-based (EB) green cards per year. They’re issued by skill level (either that of the job in question or that of the foreign national being sponsored) and limited by birth country of applicant (i.e., quotas are set based on where someone is born, regardless of where they hold citizenship).

While there are several categories of EB green cards, only three are relevant to most employers:

EB-1 applications are for (a) workers of extraordinary ability, those who are (b) outstanding professors or researchers, and those who are (c) corporate multinational executives or managers.

To qualify in the first two categories, the candidate must be able to thoroughly document their high level of skill through notable public achievements that illustrate national or global recognition as a leader in their field of expertise. (Alternately, they might have one a single major award like a Pulitzer, Nobel, or Olympic Medal.) While these applications are rare, they come with a major advantage: you don’t have to fill out paperwork for permanent labor certification, or PERM (more on that later). Multinational executives and managers, however, have requirements similar to the L-1A visa. Organizations considering sponsorship in this third category should act quickly, as the worker must have been employed outside the U.S. for at least one year in the preceding three years.

EB-2 applications are for professionals holding advanced degrees or equivalent work experience and individuals with exceptional ability whose work will substantially benefit the U.S. The worker must be able to show evidence of an advanced degree or an undergraduate degree and several years of progressive work in their field. The job in question must normally require an applicant to have an advanced degree or the equivalent work and academic experience. Typically, EB-2s are used for professionals and those in the arts.

For an employer to be eligible to sponsor an EB-2 green card, most will have to complete the PERM recruitment process in order to first attempt to identify a U.S. worker available to take the job in question. The company will only be able to continue with the green card sponsorship and file a Labor Certification if an available U.S. worker cannot be identified. (Another group that might qualify for an EB-2 application is people whose work benefits the country’s national interest. If your candidate falls into this limited group, you won’t have to go through the PERM recruitment process.)

EB-3 applications are for skilled and other workers. This is the largest group of potential workers, and as a result, the application process historically has the largest backlog. This category requires an employer to complete the PERM recruitment process. Positions that require a bachelor’s degree or less education fall into this category.

Note that it is the educational requirement of the position and not the education held by the professional that determines this EB category. This is often disappointing news to professionals with high-level degrees that hold jobs which only require a bachelor’s degree with limited or no experience. Why? Because the EB category is a factor in determining processing timeframes and when the final step of the green card (Form I-485 Adjustment of Status) can be submitted. Generally speaking, the higher the EB category, the faster the green card journey.

The labor certification process

Once you’ve determined which type of application corresponds to the work situation you’re dealing with, the biggest hurdle you’ll have to clear is the U.S. Department of Labor’s (DOL) Application for Permanent Employment Certification process (commonly called PERM or PERM recruitment, which stands for Program Electronic Review Management).

This procedure exists to protect both U.S. and foreign workers. The place of immigrants in building this country is irrefutable, and so is the blatant and subtle historical discrimination some faced working for low, or sometimes no, pay, in sweatshop-type conditions, while displacing U.S. workers. The PERM process ensures the entrance of foreign workers into the permanent labor market does not adversely impact U.S. workers, job opportunities, wages, or working – conditions – for all workers.

Employers are required to prove that they took specific measures to fill an open position with a U.S.-based worker before they can sponsor the foreign national through offering regular and ongoing employment in the particular position. A few important notes to prepare you:

  • It is not unusual for the process to take 10 to 12 months.
  • The DOL instructs how, when, and for how long recruitment efforts must take place. Even minor deviation from these rules can result in denial.
  • PERM applications can be denied or audited. The DOL may also require an employer to complete a second recruitment process called Supervised Recruitment where advertisements for the employer’s job instruct candidates to send their application directly to the DOL. Translation: it’s worthwhile to invest the time and resources in getting the PERM application right the first time.
  • You must have completed the PERM process before you file paperwork for most EB-2 and EB-3 green cards.
  • Once the PERM, or Application for Permanent Employment, is certified by the DOL, the employer’s sponsorship petition, or the Immigrant Petition for Alien Worker, may be filed with USCIS.

Employer sponsorship and green card applications

Once you’ve completed the labor certification process, your company must file the actual green card sponsorship application with USCIS before the PERM labor certification expires.

The I-140 form, or the Immigrant Petition for Alien Worker, is the one you (the employer) are responsible for. It is the official expression of your intent to sponsor the foreign national for a green card. This form requires information about your business, the worker, and the job description.

Note: approval of this form doesn’t mean your employee will immediately be granted a green card; rather, they will be put in line based on their country of birth and the category of green card in question.

The I-485 form, or the Application to Register Permanent Resident or Adjust Status, must be filed by your employee when their priority date is current. It is their official expression of intent to become a permanent legal resident of the United States. Since October of 2017, everyone who submits this application has had to sit for an in-person interview with a USCIS officer.

Note: if the employee is living abroad at this point, they will complete Consular Processing at a U.S. Consulate or Embassy to obtain their green card rather than submitting this application.

Navigating the gray areas

These are some big-picture elements of applying to sponsor an employee for a green card. But it’s a detailed and complex process with high stakes for your company and the worker you’re hoping to sponsor. I highly recommend partnering with an experienced immigration law attorney who can walk you through the process and maximize your chances of a positive outcome.

We’ve also put together a detailed guide to green cards, if you want to get an idea of some of the intricacies of the process before you start.