How to Sponsor an Employee for Permanent Residence
Employers must be willing to put in the time, effort and funds to obtain their critical worker
on August 30, 2018
Updated on July 22, 2022
Thousands of U.S. employers currently employ foreign workers, likely here on visas like the H1-B. Each year approximately 140,000 people, nearly all visa holders, qualify for lawful permanent residence (LPR) through employment—referred to as employment-based (EB) green cards. Most of these jobs are in the high-technology or STEM fields. The most common job titles in these areas include software developer, computer systems analyst, and information systems analysts. But other common job titles include mechanical and electrical engineers, statisticians, accountants and marketing managers.
Many U.S. employers have come to rely on these workers and see no potential for filling their roles with a qualified U.S. worker. However, a visa is only temporary and the worker will have to leave the country once it expires. The application process for retaining these workers is to sponsor them by petitioning for their green card and permanent resident status.
Is there a need for a foreign worker?
Robert Nadalin is an immigration attorney in San Diego, and says there is a need for these employees. For proof, he says, look no further than the student enrollment of our graduate schools.
“In a lot of our graduate programs, 50 percent to 70 percent of the students are from somewhere other than here,” he says. “If somebody needs a physicist or a PhD electrical engineer, or a PhD bio-scientist, sure there are U.S. kids that go through those programs too, but in terms of percentage of the students at the graduate level, a lot of times a larger percentage of those persons are foreign students. And so, with employers, I think their first preference would be to hire a U.S. worker, but sometimes there aren’t enough people with those skills so [the employer] ends up needing to step into this visa sponsorship process just to fill the available job.”
How to prove the need for the foreign employee?
To prove the need for a foreign worker, the employer must demonstrate that:
- there is not a U.S. worker able, qualified, and willing to accept the job offer for the prevailing wage for that position in the local area
- the hire will not adversely affect the wages or working conditions of similarly employed U.S. workers
To show this, the employer will go through the permanent labor certification process (PERM). The PERM process will require the employer to recruit U.S. workers for the applicant’s position—the most time-consuming and costly part of the process. Nadalin explains that, “with labor certification, most of those cases are ultimately approved. I think [Department of Labor] knows that. It’s kind of DOL’s way of getting their pound of flesh to protect the U.S. job force.”
Nadalin cautions that labor certification, “is a process that’s onerous, tedious—honestly, start to finish, often takes six to 12 months to go through. Employers are reluctant to incur all that expense and all that time unless it’s a worker who’s highly-skilled and critical to the business operation. Most of the time, if an employer is willing to go through all that, we kind of already know on the front end that they’re probably going to have an approval. It’s just a matter of going through those required steps.”
Employer costs can run $10,000 to $30,000 for the entire process. These high costs typically leave lesser-skilled workers shut out from getting a green card.
Changes will make it more difficult
With news of increased enforcement of H-1B visas under the Trump administration, Nadalin says he’s seeing increased enforcement as well with employment-based green card applications. “The laws have all stayed the same, regulations have mostly stayed the same. But with the [Buy American Hire American] executive order, I think that’s pushed adjudicators toward a stricter enforcement stance,” says Nadalin. “Things that should get approved—most of them ultimately are getting approved—but it’s only after very careful vetting. And I think these processes have become more complicated and have started to take longer than they have in the past and that’s just the examiners examining every point of qualification very closely.”
The process for retaining an employee with a green card was already complex. Currently with increased enforcement across all areas of U.S. immigration, employers are advised to seek out an experienced immigration attorney to guide them.
For more information on work visas, the permanent residence process, and immigration law, see our immigration overview.