Eye on Hospitality: Path to Citizenship – What Employers Need to Know

Eye on Hospitality: Path to Citizenship – What Employers Need to Know https://wahospitality.org/wp-content/uploads/2017/03/uscitizen0317a.jpg

By Davis Bae

There is a long road to becoming a United States citizen. Before applying for citizenship, immigrants must first obtain permanent residence (green card) status. While getting a green card has a reputation for being a lengthy, daunting process, it is one that is navigable and of great interest to employers who want to access the global talent pool.

Green cards are federal government-issued ID cards that document a person is a permanent resident. This means the person has permission to reside in the United States, work for a U.S. employer and travel in and out of the United States without a visa stamp. In addition, it starts the clock for qualifying for citizenship in 3-5 years. Employers seeking to sponsor foreign nationals for permanent residence must obtain an immigrant visa approval on behalf of the employee through the United States Citizenship and Immigration Service (USCIS), which details the process here.

The vast majority of employment petitions for green cards require a showing that there is a shortage in a particular type of occupation in the United States. These positions require at least two years of experience. This process is called a labor certification, which is certified through the U.S. Department of Labor and is described here.

If the position is one of great interest to the United States, the requirement of a labor certification can be eliminated and the employer can go directly to the Form I-140, Petition for Alien Worker. Individuals who are extraordinary in their fields, do work in the national interest, and are managers and executives of international companies qualify for green cards without documenting a shortage. In addition, investors who create jobs in the United States and generally invest more than $1 million can also qualify for permanent residence without showing a job shortage. The USCIS puts out a summary of these options.

Form I-140 can be a deceptively simple and has more than 10 pages of instructions to help guide you through its details.

Part One of the Form I-140 asks for basic information on your company.

Part Two asks for details on the type of alien you want to hire. You are required to select one box with choices including

  • “An alien of extraordinary ability,”
  • “A professional (at a minimum, possessing a bachelor’s degree or a foreign degree equivalent to a U.S. bachelor’s degree),”
  • “A skilled worker (requiring at least two years of specialized training or experience)” or
  • “Any other worker (requiring less than two years of training or experience).”

Part Three asks for details on the employee –

  • Name,
  • Address,
  • Date of birth,
  • Daytime phone number,
  • Place of birth,
  • Country of citizenship,
  • Country of nationality,
  • Alien registration number,
  • S. Social Security number,
  • Date of arrival (if in U,S,),
  • I-94 arrival-departure number (if in U.S.),
  • Passport number (if in U.S.),
  • Travel document number (if in U.S.),
  • Country that issued passport or travel document (if in U.S.),
  • Expiration date of passport or travel document (if in U.S.),
  • Current nonimmigrant status a (if in U.S.).

Part Four is basic processing information. You will need to provide

  • The person’s foreign address,
  • The person’s name if from a country that uses a writing system other than the Roman alphabet, and
  • Answer questions regarding if there are any other petitions being filed for the person and
  • Provide information on the person such as if the person in removal proceedings, if there ever was another immigration petition filed on behalf of the person and if the petition is being filed without an original labor certification.

Part Five requires additional information about your business including

  • Type of business,
  • Date established,
  • Current number of U.S. employees,
  • Gross and net annual income,
  • NAICS code and
  • Labor certification DOL/ETA case number.

Part Six is basic information about the proposed employment including

  • Job title,
  • SOC code,
  • Description of the job,
  • Whether it is full-time,
  • If it is permanent,
  • If it is a new position and its

Part Seven is information on spouse and children of the person for whom you are filing. Part Eight is your signature, and Part Nine is the signature of the person who prepared the petition if someone other than yourself.

Employers are required to verify that non-U.S. citizens they plan on employing or continue to employ in the United States are authorized to accept employment in the United States. Individuals, including those who have been admitted as permanent residents, granted asylum or refugee status or admitted in work-related nonimmigrant classifications, may have employment authorization as a direct result of their immigration status. Other aliens may be required to individually apply for employment authorization.

In addition to the Form I-140, individuals in the United States must also file an Adjustment of Status, which is done on a Form I-485. Before filing for the Adjustment of Status, the applicant must have an immigrant visa number available to them through the Visa Bulletin. Every month, the Department of Status announces the availability of immigrant visa numbers through the Visa Bulletin. The availability of visa numbers depends on the basis of the immigrant visa and the country of the applicant’s birth.

The Adjustment of Status is a background check to confirm that the individual applying for permanent residence has no immigration, criminal or medical reason to deny the status.  Individuals must be able to show that they are in the United States legally at the time of filing, which is a significant barrier to the more than 11 million people who are without documentation. Lastly, each dependent of the primary foreign national who qualified for the I-140 must also file an immigrant petition.

As you can see from this summary, there are a lot of details involved in such an application, but it is workable, and if you have a foreign national you want to hire as a permanent employee with green card status, it behooves you to get to know the process.

Davis Bae is the managing partner of Fisher Phillips’ Seattle office. His practice focuses on providing effective immigration solutions for companies in the Pacific Northwest and throughout the United States. His clients are leaders in fields such as software, design, construction, manufacturing, utilities, fine arts, sports, international trade and engineering. He has authored multiple articles for the American Immigration Lawyers Association (AILA) on topics including consular processing, labor certification, nonimmigrant visas, and practice management. In 2009, he was editor-in-chief of AILA’s Immigration Lawyers Toolbox.