Immigration & Naturalization Law

How Can I Help My Employee Become a U.S. Resident?

Employee petitions, like relative petitions, are a common way to help a person get a green card and get on the path to becoming a United States citizen.

To help an employee become a permanent resident, the employer has to go through an application process with the United States Citizenship and Naturalization Service (USCIS) and the U.S. Department of Labor (DOL). There are specific requirements that must be met for this path to be successful.

Permanent Residence and Work Eligibility (Green Card)

International citizens who wish to work and reside permanently in the U.S. on some type of employment visa will need a specific type of permit commonly called a “green card.” Employment-based green cards are issued when the applicant has a permanent employment opportunity in the U.S. and the employment meets qualifications for sponsorship. However, not every worker who legally comes to the U.S. to work is eligible for a green card. It depends on whether the worker came under an immigrant or nonimmigrant visa.

Immigrant and Nonimmigrant Visas

To get a green card, foreign employees need either an immigrant visa or a duel-intent visa. An immigrant work visa is for immigrants coming to the U.S. to fill a full-time, indefinite position and typically involves work that requires unique skills. Employees must fall within one of four occupational categories to gain permanent residency on the basis of their employment. Employees must either be:

  • Priority workers, such as internationally acclaimed athletes or artists, renowned academics, or multinational executives (EB-1 visa)
  • Professionals with advanced degrees or persons with exceptional ability, such as those who have a rare skill or specialty (EB-2 visa)
  • Professional or skilled workers, such as workers holding college degrees or skilled laborers not available in the U.S. (EB-3 visa)
  • Special Immigrants, such as religious workers or some physicians (EB-4 visa)

In each case, the employer has to show that there aren’t enough current citizens who are capable of doing that particular job before they’re allowed to look to outside workers. First preference work immigrant visas (EB-1 visa applicants) do not need to have an employer sponsor them.

Dual-Intent Visas

Some temporary work visas are considered “dual intent.” This means that a foreign worker can come to the U.S. to fill a temporary work position and then either simultaneously or sometime later complete an “adjustment of status” to get on the path to permanent residence. The H-1B, L-1, and O-1 work visas are examples of dual-intent visas. The employer must sponsor the petition to adjust the employee’s status.

To provide just one example, H-1B visas are dual-intent visas for foreign nationals who possess a specific, uncommon skill or expertise. Historically, these have been used frequently in the tech industry to hire developers and other foreign national tech workers, who may then become eligible for permanent residency.

Nonimmigrant Visas

Nonimmigrant visas do not provide a path to citizenship. For example, H-2A and H-2B programs are for temporary, seasonal workers, meaning workers under this visa must return to their home country after a set period. They can, however, return under the same visa later to do seasonal work again.

An employer can sponsor a worker who was previously here under an H-2A or H-2B visa to come to the U.S. under an immigrant or dual-intent visa, but that will be a separate matter.

Labor Certification Application

If an employer wishes to hire a foreign national for an immigrant work visa, the employer has to apply for a Labor Certification Application (LCA) from the U.S. Labor Department (although there are some exceptions). Following the approval of the LCA, or if the LCA is not required, the employer must file Form I-140, an Immigrant Petition for Alien Worker with the USCIS Service Center, or in the case of employees who qualify as Special Immigrants, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

Once the application is approved, the employer must wait until the employee receives an immigrant visa number from the U.S. Department of State, even if they are already in the country. The approved application gives the employee a “priority date,” or a place in line among the other people seeking lawful permanent residency through the same occupational category. There will be a waiting period for approval, largely based on where the employee is coming from and how many applicants there are for the same type of visa at the time.

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

Employment as a Path to U.S. Citizenship

Foreign nationals who work in the United States under a green card can become eligible for American citizenship. Unlike a permanent resident, a citizen can vote in elections and enjoy all the rights and freedoms afforded to any other American. In most cases, they will be able to retain dual citizenship with their home country as well, though people are limited to citizenship in a maximum of two countries at a time.

It’s absolutely essential to follow immigration law and fulfill all the information requirements when applying for naturalization. The government denies applications that break the rules, and in some cases deports the applicant. Even simple, honest mistakes can require a full restart of the filing process, wasting precious time and money.

Employees seeking citizenship will need to have an active, valid green card for at least five years before they start the citizenship application process. It’s important to note that work visas may need to be renewed before that five-year period is up. During those five years, the employee can’t be out of the country for more than 30 months total or more than one year at a time.

An employee who wishes to apply for naturalization must be at least 18 years old and of “good moral character,” which typically means they haven’t had any run-ins with the law. They also have to have proficiency in reading, writing, and speaking in English and knowledge of the country’s history. There will be a test on some of this information as part of the naturalization process.

The government also requires immigrants to file Form N-400, Application for Naturalization. This will request information about their identity, work history, taxes paid, and any relevant crimes or other issues with national or international law. Once the filing is approved, they must sit for an interview with an immigration agent. Upon completion of all these steps, they will take an oath of allegiance to the country as their final step for citizenship.

If any problems arise during the immigration process, whether it is related to the green card or other visas, the application, or appealing a negative decision from immigration officials, immigration lawyers could help. Because the rules are so strict on visa and residency requirements, someone who knows the laws and the legal system can reduce errors and improve the chances of a successful petition.

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