Employment-based lawful permanent residence status is allocated through a quota system divided into five separate preference categories. Each year, immigration under the five categories is limited to no more than 140,000 individuals. A per country limitation of 7% means that the process can take longer for persons from certain high immigration countries, including China, India, Mexico and the Philippines. The State Department publishes a monthly visa bulletin listing the wait times for the various preference categories, with specific reference made to those countries whose nationals can expect the process to take longer.

The first preference category includes processes that allow multinational managers, outstanding researchers, and persons of extraordinary ability to obtain lawful permanent residence. These persons are exempt from the labor certification process described below. Also, certain persons of exceptional ability may also qualify under the second preference category for an exemption from the labor certification process if such a waiver is found to be in the national interest.

Except as noted above, the second and third preference categories require a certification from the U.S. Department of Labor confirming that the labor market has been adequately tested and that no U.S. workers were able, available, qualified or willing to take the proposed position. To qualify under the second preference, the job must require at least a master’s degree or alternatively, a bachelor’s degree followed by at least 5 years of progressive job experience. Cases requiring less are allocated to one of two subcategories found under the third preference. There is a third preference subcategory for professional positions requiring a degree or at least two years of work experience as well as a separate subcategory for skilled worker positions that require less than two years of experience.

The fourth preference category allows for the immigration of special immigrants, including certain religious workers. The fifth preference was established to facilitate the immigration of investors who have invested at least $1.8 million in the U.S. and hired at least 10 full-time U.S. workers. For certain targeted employment areas, the required investment amount may be reduced to $900,000.

I-9/ IRCA Compliance

The IRCA (Immigration Reform and Control Act of 1986) established the employer’s requirement to complete a Form I-9 to confirm an employee’s legal right to work in the U.S. within 3 business days of hire. This requirement applies to any employee hired after November 6, 1986. To confirm work authorization, the employer reviews the documents presented by the employee to confirm the person’s identity and employment eligibility. The employer cannot request the production of a specific document. Instead, the employee is free to present documentation from the list promulgated by the Department of Homeland Security, as appropriate to his or her circumstance. A refusal to accept documents of the type listed as acceptably by DHS, or requesting documentation beyond what the law requires, can subject the employer to liability on the basis of national origin discrimination.

Mergers, Acquisitions and Reorganizations

Mergers, acquisitions, spin-offs and other types of reorganizations can impact a company’s ability to continue to employ a foreign worker in a lawful status. The specific nature of the transaction may affect persons in H, L, E or TN status differently. Changes in the corporate structure can also impact the employer sponsored permanent residence process. Involving immigration counsel prior to the execution of the change can maximize the company’s ability to facilitate a smooth transition.

Deemed Exports

Foreign worker access to certain technologies may be deemed to be an export, as this access may lead to the transfer of knowledge to a non-U.S. entity. For some technologies, foreign worker access if freely allowed, while in other cases access may be prohibited. Finally, there are limited cases in which access may only be allowed after an export license has been obtained. The extent to which these restrictions apply can vary based on citizenship, the specific immigration status of the foreign worker. Permanent residents may be treated differently than citizens or nonimmigrant workers regarding these restrictions.