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Last Updated On: January 17, 2024 | Published On: October 26, 2022
As a small business owner, you may have job openings that no U.S. employee is willing to take or have a nonimmigrant employee whom you’d like to make a permanent worker. If you are facing either of these two scenarios and are wondering if your small business can meet the eligibility requirements for sponsoring a green card, this post is for you.
A small business can sponsor a green card for a prospective employee or a worker who is already employed. However, the Department of Labor (DOL) and the United States Citizenship and Immigration Services has specific criteria for sponsoring a green card as a small business owner.
Before you can sponsor an employment-based green card, you will need approval from both the DOL and the USCIS. Here are the steps to follow:
This is the first step you will need to take as an employment-based green card sponsor. You will start the process by submitting a prevailing wage request to the DOL on the agency’s website using the ETA 9141 form.
The application is to demonstrate to the DOL that you have the capacity to pay the prevailing wage for the job specification you are sponsoring the employee for and intend to pay that wage. The request will contain the requirements for the job and workstation location. The minimum salary for a particular job in a particular area is set by the National Prevailing Wage Center (NPWC).
You will also need to advertise for the position. This will be done to show the DOL officers that there are no available and willing U.S. workers for the job, thus the necessity to bring in a foreign worker.
You will also be required to post the job in at least three different platforms, namely the state workforce where the employment site is located; a major newspaper advertisement on two Sundays consecutively; and thirdly, you must place the ad at the worksite location.
If, after this recruitment period, no U.S. worker applied, then you can proceed to the last stage of the PERM Labor Certification process by filing an ETA 9089 form. Your application will be adjudicated, and after several months, you will get the notice of either approval or denial.
If your petition is approved, you will continue the process by filing an I-140, this time with the USCIS. Please, note that there are a few cases where PERM labor certification is not required. See the details in the types of employment-based cards below.
Having acquired the PERM labor certification for the employee, the next stage is to file an I-140, Immigrant Petition for Alien Worker.
The I-140 has different sections that require information about the employee’s competence, qualification, and experience for the position, as well as your company’s financial status. You will need to submit proof that includes your company’s profit and loss statement, balance sheet, and other relevant documents.
As a small business owner, it is advisable that you allow your immigration attorney to help you file this form. The I-140 must be filed within six months after the approval of the PERM application. This may take 4 to 6 months to be processed.
There are different types of employment-based green cards you can file on behalf of an employee. The nature of the employment and the employee’s qualifications or abilities will determine the type of immigrant visa to file. The employment-based green cards available to eligible foreign nationals are divided into four different categories:
The EB-1 priority workers green card is divided into three subcategories: the EB-1A for workers of extraordinary abilities, the EB-1B for outstanding researchers and professors, and the EB-1C for multinational executives and managers.
This is known as the first preference employment-based immigrant visa because and does not require a PERM labor certification. This makes it relatively faster and easier to process compared to other employment-based visas. Both the petitioning employer and the beneficiary employee will save between six to eight months required for PERM certification in other categories, not counting the priority date waiting time.
However, it comes with higher standards, which makes it very difficult to obtain for the employees of most small business owners. To know if your own small business has the qualifications to sponsor this green card category, it is a good idea to work with your immigration attorney.
This is known as the second preference level of employment-based green cards, and it is meant for foreign workers who have advanced degrees or exceptional ability in a particular field.
It requires a PERM Labor Certification, but this may be waived by filing for a National Interest Waiver (NIW). However, you must demonstrate to the immigration officers that waiving the PERM will be in the best interest of the United States.
While this may not be relevant when it comes to sponsoring an employee, getting an NIW is ideal for small business owners to be able to sponsor themselves for their own green cards. However, you must be able to show that your work contributes to the benefit of the U.S.
The EB-3 green card is the third preference level and is meant for three sets of foreign workers: skilled workers, professionals, and unskilled workers. This category has more eligible foreign nationals because the requirements are not as high as those for the EB-1 and EB-2.
All that the EB-3 requires is a few years of work experience or an undergraduate degree. For unskilled workers subcategory, those who only have vocational training are also permitted provided they can demonstrate that they have the capabilities for the job and that the job is not seasonal or temporary.
The EB-4 green card for special immigrants is as unique as its name implies because the process is different from other types of employment-based visas. The fourth preference level of employment-based green card is for eligible special immigrants who are:
An EB-4 green card does not require a PERM labor certification, and unlike other categories which require an I-140 petition, the form you will need to file as a petitioning employer for EB-4 is an I-360.
Each of the above employment-based categories has different requirements. It is imperative that you carefully study the employee’s qualifications in relation to the vacant position before you begin the application process.
Also, as an employer, there are conditions that you must meet for each of the categories. Sponsoring a visa category that you or the beneficiary are not qualified for will be a waste of time and money. Your application is going to be scrutinized, and if the requirements are not met, your request is going to be rejected.
As stated above, the visa category will determine different factors. It is important that you always consult your immigration lawyer before sponsoring an employment-based green card. As a small company, your options may be limited compared to multinational companies and other larger U.S. enterprises.
Typically, employment-based visa categories involve multi-process for both the sponsor and the beneficiary. Being a small business owner, you may need to go through a more demanding process to convince both DOL and USCIS officers that you have the qualifications necessary to sponsor an employee’s green card.
Regardless of the size of your business, you may be qualified for green card sponsorship if you present the following documents:
If the employee is currently working for you, you will need to include the following documents:
If you are a sole proprietor or individual employer, demonstrating the ability to pay the required wages will require more proof. Your supporting evidence may include showing the ability to continue meeting the expenses needed to sustain yourself and your household. A statement listing your monthly living household expenses and personal liquid assets will be required. You may need to present your household expenses on the following:
The size of your business doesn’t determine the success or failure of your application to sponsor a green card. Sometimes, even multinationals and other big companies also experience green card denials.
Whether you have a small or a big business, if you fail to convince the immigration or DOL officers that both the business and the employee are eligible for a green card, then your petition will most likely be denied. So, make sure that you pay attention to every detail in your petition forms and present every required document right from the outset to avoid delays or denials. However, if for any reason your petition is denied, you can contact an immigration lawyer for guidance on how to move forward.
Below you will find answers to commonly asked questions about sponsoring an employee for a small business.
Can a restaurant sponsor a green card?
There are a number of ways a restaurant could recruit talent from countries outside of the U.S. If for example there is a chef that has international notoriety and demonstrates extraordinary ability, they could qualify for the O-1B classification. Another option is through the J-1 culinary training program which more closely resembles an internship where the individual circulates through different positions in the kitchen. A third option is to recruit hospitality or seasonal workers on the H-2B visa. With this option, a labor certification is required.
Can you get a green card by opening a business?
Yes, you can with an immigration path called the EB-5 Immigrant Investor Program. The minimum amount of capital required to invest is $1,050,000 (on or after 3/15/22). To apply you’d file Form I-526, once that’s approved you will either file DS-260 or Form I-485 with USCIS, then file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status within the 90-day period before the second year of your admission as a conditional permanent resident.
Can a company sponsor a green card?
Yes, a company can sponsor a green card. Review the various employment-based sponsorship options in this article for the most suitable option for your company.
What is the point of the petition for my employee?
The purpose of the petition is to show immigration officials you have the intention to hire the foreign employee and also proving the legitimacy of the employer-employee relationship and that the eligibility requirements are met. It also establishes the employer’s place in line or ‘priority date’ so that when a visa becomes available, they can come to the United States to work.
Can my relative sponsor me on an employment visa if they have a business in the U.S.?
This is an extremely tricky subject and should be approached with extreme caution due to the potential consequences. Some people might think this is a better option due to the long wait times for family-based green cards but it does come with many hurdles to overcome. First is the PERM labor certification process. The second is that you must answer yes in the application portion (on Form ETA 9098) where it asks “Is the employer a closely held corporation, partnership, or sole proprietorship in which the [sponsored person] has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the [sponsored person]?” You absolutely cannot lie on this question if you are somehow related, by marriage or blood. At the end of the day, the Department of Labor will look at all the factors and circumstances and decide if the familial relationship could be influencing the hiring decision. Discuss this further with your immigration attorney.
VisaNation Law Group has a team of dedicated immigration attorneys who are highly experienced in filing employment-based green cards. They have helped many small business employees file and acquire their U.S. permanent residence. If you are about to sponsor a green card as a small business or your earlier petition was denied, we can help.
Tags: EB-1, EB-2, EB-3, PERM Process
