USA
Employer green card sponsorship for EB-2 and EB-3 jobs.
Employer green card sponsorship means a US employer offers a foreign worker a permanent job and files the paperwork that turns that offer into a green card case. For the EB-2 and EB-3 green cards, the employer first gets PERM labor certification from the Department of Labor. That certification confirms the employer tested the US job market and found no qualified US worker for the job. It isn’t a visa, and it gives the worker no status or permission to work. Once PERM is approved, the employer files Form I-140, the immigrant petition, with USCIS.
The rules protect the jobs and pay of US workers, while letting an employer fill a permanent job with a foreign worker when no qualified US worker applies. The green card sponsorship requirements fall on both sides. The employer defines the job, gets the official wage figure, advertises the job, reviews the people who apply, and signs and files the forms. The worker brings the degree, training or experience the job asks for, as set out in the EB-2 requirements and EB-3 requirements, and later applies for the green card itself.
The employer’s part doesn’t end when PERM is approved. Until the worker becomes a permanent resident, the job has to stay on offer, and the employer has to stay able to pay the offered wage.
Employer green card sponsorship: who counts as a US employer.
Any US employer can sponsor a worker for an EB-2 or EB-3 green card through PERM. For employer green card sponsorship, a US employer is a company, a nonprofit or a person with a real workplace in the United States. It has to be a place where US workers could be hired for the job, since the case tests whether any of them want it. The employer also needs a Federal Employer Identification Number (FEIN), the tax ID number the IRS gives employers.
There is no minimum size, age or revenue. A startup, a hospital, a family restaurant and a person hiring a household worker can all sponsor, for jobs at any skill level, from a cook to a research scientist.
The worker doesn’t need to work for the company yet. Sponsorship is an offer of a future job, and the employer files because it intends to hire the worker. A company can sponsor someone who lives abroad, someone who works for another employer, a student about to graduate or one of its own staff. The worker doesn’t need to be in the United States or hold a work visa while PERM runs.
The employer files the case, not the worker. In PERM-based EB-2 and EB-3 cases, only an employer that intends to hire the worker can file Form I-140, so a worker can’t start the case alone.
The job has to be permanent and full-time, which generally means 35 hours a week or more, on the employer’s own payroll. It can’t be set up as an independent-contractor arrangement, though someone who works as a contractor today can still be sponsored for a permanent employee job. Self-employment doesn’t count either, but a company the worker owns is a separate employer.
Can a company the worker owns sponsor a green card?
Yes, the law allows it. Owning part of the company, being related to its owners or working on a very small staff doesn’t rule a worker out of PERM. In practice, though, the proof is hard to make. A yes to the ownership or family question on Form ETA-9089, the PERM application, tends to draw an audit, which adds its own round of document requests and waiting.
The worker can’t take part in hiring for the job, and the employer has to show that a qualified US applicant would have been hired. For example, a startup with five employees can sponsor a founder who owns 30 percent of it. The founder can’t judge the US applicants who answer the job ads or make the hiring call, so someone else at the company has to run the hire.
If the case is audited, the employer proves the job is a real opening.
The rule…the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity…
20 CFR 656.17(l)
A bona fide job opportunity is a real opening that any US worker could have filled. The rule asks for that proof in three situations. The first is a worker who owns part of a closely held company, one with a few owners and no publicly traded shares.
The second is a worker related to any of the company’s owners, officers, incorporators or partners. Family is read broadly here: any tie by blood, marriage or adoption counts, even a distant one, including cousins, in-laws and stepfamily. The third is a worker who is one of only a few employees.
In each of them, an audit asks the employer to show the job is open in fact. The employer shows how the business is set up and who owns it, and how much each owner and officer invested. It also shows how they are related to each other and to the worker.
It names the official who interviews and hires for the job, and anyone else with a say in that hire. With 10 or fewer employees, it documents any family ties between the staff and the worker.
A tie left off Form ETA-9089 is a false statement on a signed application.
- The worker writes the job description or signs off on the hire
- The worker, or a relative who owns the company, takes part in reviewing applicants
- A job that didn’t exist until the worker needed a sponsor
Green card sponsorship requirements for employers: what the company takes on.
Sponsoring a worker through PERM commits the employer to these duties:
- Offer at least the prevailing wage, the Department of Labor’s figure for the lowest pay the job can offer in that area
- Advertise the job before filing, through a state job order, two Sunday newspaper ads and, for a professional job, three more recruitment steps
- Post a notice of filing at the workplace, so the employer’s own staff can see the job and apply
- Have its usual hiring staff, never the worker, review every US applicant and turn one down only for a lawful, job-related reason
- Pay every cost of the labor certification itself, without taking money, a wage cut or free work from the worker
- Keep the job on offer until the worker becomes a permanent resident
Under PERM, a US applicant who meets the job’s minimum requirements counts as qualified, even if the sponsored worker is stronger. One such applicant stops the PERM for that opening. The payment ban also covers wage cuts, unpaid extra work and repayment agreements, as well as cash.
I-140 ability to pay: proving the offered wage from the priority date.
I-140 ability to pay is the employer’s proof that it can pay the offered wage, the salary written on the PERM. USCIS asks because a job offer only counts if the employer can actually pay it. The employer files that proof with Form I-140 at USCIS within 180 calendar days of the PERM certification. If it misses that window, the certification expires and the employer has to run PERM again.
The proof covers every year until the green card.
The ruleThe petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.
8 CFR 204.5(g)(2)
The priority date is the day the Department of Labor received the PERM. Profit and loss statements, bank records or personnel records can be added to the core documents, and USCIS can ask for them.
USCIS then reads the evidence for each year from the priority date in three ways, set out in its Policy Manual.
| Test | What USCIS compares with the offered wage | Where the figure comes from |
|---|---|---|
| Wages paid | What the employer actually paid the worker that year | W-2 forms and payroll records |
| Net income | The employer’s profit for the year, with no depreciation added back | The federal tax return |
| Net current assets | Current assets minus current liabilities at the end of the year | The tax return or the audited statements |
Passing any one test can establish a year. USCIS never adds net income and net current assets together.
When the worker already earns part of the offered wage, only the difference has to be covered. An employer that paid $70,000 against an offered wage of $90,000 needs net income or net current assets of $20,000 for that year.
The money has to be the employer’s own. USCIS generally leaves out the assets of owners, shareholders, LLC members and a parent company, because they have no legal duty to pay the wage. A sole proprietor is the exception, since the owner and the business are one.
An employer with 100 or more workers may send a financial officer’s statement in place of the core documents, and USCIS decides whether it is enough on its own. An employer sponsoring several workers shows it can pay each one’s offered wage, every year from each petition’s priority date.
When the figures fall short, USCIS can weigh the totality of the circumstances, the whole picture of the business. It looks at gross revenue, total wages paid, years in business, growth, a one-time loss or disruption, the number of employees and the company’s reputation. It also considers whether the worker replaces a former employee or an outsourced service.
PERM successor in interest: when the sponsoring company is sold, merged or closed.
A successor in interest is a company that takes over the sponsoring employer through a purchase, a merger or a change of ownership. It can keep the worker’s PERM and I-140, so the employer green card sponsorship continues under the new owner. Under USCIS’s successor rules, it files an amended I-140 that shows three things.
First, the job stays the same, with the pay, metropolitan area, duties and requirements written on the PERM. A raise that comes with time doesn’t change that.
Second, the ability to pay runs without a gap. The old company shows it could pay from the PERM filing until the transfer, and the new one from the transfer onward.
Third, the transfer itself is documented, showing how the new company took over all or part of the old one. A services contract or a partnership between two companies, with no transfer of ownership, isn’t a succession. When the new owner can’t show all three, it starts over with a new PERM.
Some changes need no new filing. A new legal or trade name with the same owners and structure, or a move within the same metropolitan area, leaves the case as it is.
A 180-day rule applies when the business closes or the employer withdraws an approved I-140. Within 180 days of approval, either one revokes the approval, unless the worker’s green card application has been pending for 180 days or more. After that point the approval stands, and the worker can keep the priority date.
The job offer still has to be real when the worker files for the green card inside the US. On Form I-485 Supplement J, the worker confirms the I-140 job remains a valid offer they intend to accept.
Common questions
From the day the worker starts the job as a permanent resident, or is admitted to take it up. Before then the worker may earn less, but USCIS measures the ability to pay from the priority date, so the employer covers any gap with net income or net current assets in each of those years.
Yes. For each year from a petition’s priority date, the employer shows it can pay every sponsored worker’s offered wage together. Workers who already hold green cards, petitions the employer withdrew, petitions denied or revoked with no appeal pending, and years before another petition’s priority date are left out of that count.
Yes, at any time, by written notice to USCIS. A withdrawal less than 180 days after approval revokes the petition, unless the worker’s green card application has been pending for 180 days. A later withdrawal leaves the approval standing, so the worker keeps the priority date for a new employer’s PERM and I-140.
Employer green card sponsorship needs a US workplace, an FEIN and a permanent, full-time job. A case also stops when a qualified US worker applies for the only opening, when the employer cannot show its ability to pay, when the job is not truly open to US workers, or when the Department of Labor suspends or debars the employer.
Yes. PERM looks at the job, not at where the worker works today, so a current employee is sponsored on the same rules as an outside hire. The employer still advertises the job and reviews US applicants, and a qualified US applicant stops the case for that opening, even though the worker already holds the job.
Sources
- 20 CFR 656.3: Definitions, for purposes of this partLegal Information Institute, Cornell Law School
Show all 19 sourcesShow fewer sources
- 20 CFR 656.10: General instructionsLegal Information Institute, Cornell Law School
- 20 CFR 656.12: Improper commerce and paymentLegal Information Institute, Cornell Law School
- 20 CFR 656.17: Filing applications for permanent labor certificationLegal Information Institute, Cornell Law School
- 20 CFR 656.20: Audit lettersLegal Information Institute, Cornell Law School
- 20 CFR 656.30: Validity of and invalidation of labor certificationsLegal Information Institute, Cornell Law School
- 20 CFR 656.31: Labor certification applications involving fraud or willful misrepresentationLegal Information Institute, Cornell Law School
- 20 CFR 656.40: Determination of prevailing wage for labor certification purposesLegal Information Institute, Cornell Law School
- 8 CFR 204.5: Petitions for employment-based immigrantsLegal Information Institute, Cornell Law School
- 8 CFR 205.1: Automatic revocationLegal Information Institute, Cornell Law School
- 8 U.S.C. 1182: Inadmissible aliens (INA 212(a)(5)(A))Legal Information Institute, Cornell Law School
- USCIS Policy Manual, Vol. 6, Part E, Ch. 4, Ability to PayU.S. Citizenship and Immigration Services
- USCIS Policy Manual, Vol. 6, Part E, Ch. 3, Successor-in-InterestU.S. Citizenship and Immigration Services
- I-140, Immigrant Petition for Alien WorkersU.S. Citizenship and Immigration Services
- I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job PortabilityU.S. Citizenship and Immigration Services
- Permanent Labor Certification (PERM)U.S. Department of Labor
- Prevailing Wages (PERM, H-1B, H-1B1, H-2B, E-3)U.S. Department of Labor
- Office of Foreign Labor Certification forms, including Form ETA-9089 instructionsU.S. Department of Labor
- Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity (72 FR 27904)Federal Register · May 17, 2007
2–4 years
$12,000–$19,500
