How can I help my employee become a U.S. resident?

By: LawInfo

Published: 01/2009

Aside from relative petitions, employee petitions are another common way to help a person become a U.S. resident. In this global age, it is not uncommon for employers to recruit employees on an international basis. In order for a foreign national to permanently live and work in the U.S. as a resident, the employer has to go through an application process with the U.S. Citizenship and Naturalization Service (USCIS). Furthermore, there are specific requirements as to the type of foreign employees that are eligible for this type of immigration process.

Typically, the employer must first obtain a Labor Certification Application (LCA) from the U.S. Department of Labor. However, for some classes of employees, the LCA is not required. Following the approval of the LCA, or if the LCA is not required, the employer must file Form I-140, Immigrant Petition for Alien Worker with the USCIS Service Center, or in the case of employees who qualify as “Special Immigrants,” as defined in the following paragraph, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Eligible foreign employees may be living either inside or outside of the U.S. at the time of the petition. However, employees must fall within one of four occupational categories in order to be eligible for lawful permanent residency on the basis of their employment. Employees must either be “Priority Workers”, such as professors or multinational executives, “Professionals with Advanced Degrees or Persons with Exceptional Ability”, “Professional or Skilled Workers”, such as workers holding college degrees or skilled laborers not available in the U.S., and/or “Special Immigrants”, such as religious workers or some physicians.

Once the application is approved, you must wait until the employee is given an immigrant visa number by the U.S. Department of State, even if he or she is already in the U.S. The approved application gives the employee a “priority date”, or a place in line among the other persons also seeking lawful permanent residency through the same occupational category. Waiting periods for immigrant visas vary according to a number of factors, such as the country or region of the employee, and the number of other persons seeking the same type of visas.

After receiving an immigrant visa number, the employee is entitled to an immigration visa to enter and work in the U.S. At this point, the employee’s spouse and unmarried children under age 21 also are generally able to petition for immigrant visas, or to adjust their status to that of lawful permanent residents, as well. If the employee is already in the U.S., then he or she must file the necessary application in order to adjust his or her status to that of a lawful permanent resident. If the employee is not yet in the U.S., then he or she will complete the process at a local U.S. consulate office.