Foreign workers can obtain an employment-based green card through the second and third preference employment-based immigration categories. Second preference (EB-2) and third preference (EB-3) employment-based categories follow a similar process where a United States employer can petition a foreign worker for an employment-based green card if there are no qualified U.S. workers available for the employment position. EB-2 classification is available for foreign workers with a bachelor’s degree and five years of progressive experience in their specialty or master’s degree who will work in a professional occupation. EB-3 is available for professionals with a bachelor’s degree, skilled workers with jobs requiring at least two years of training or experience or other workers employed in positions requiring less than two years of training or experience. This is called the PERM (Program Electronic Review Management) process where, after the Department of Labor determines the minimum wage that must be paid for a position, the U.S. employer conducts recruitment and, if no qualified U.S. worker applies, the employer can apply for a labor certification and, once issued, the foreign worker can submit Form I-140, Immigrant Petition for Alien Workers and, upon approval, can qualify for permanent residency. Since this process seems relatively straightforward, why do not more employers seem willing to petition their foreign workers for this process? I will explain below why some employers may be hesitant to petition their foreign workers and some options foreign workers have if their current employer is unwilling to petition them.
Financial Costs
A significant reason for why certain employers are unwilling to sponsor an employment-based green card is due to significant additional costs. Firstly, due to fulfilling the complex regulatory requirements, an employer will likely hire an attorney to handle the process, which can cost thousands of dollars. In addition to lawyer fees, there are recruitment fees. As discussed above, a U.S. employer must demonstrate that there are no qualified workers for the job and this involves detailed and time-sensitive recruitment steps that must be followed. Employers may hire a third-party company that can handle the recruitment process or handle it themselves. Regardless, the recruitment methods themselves must be paid for as well as any third party company that handles the recruitment. Costs associated with obtaining the labor certification must be paid by the employer; the foreign worker is prohibited by law from paying these fees. It must also be noted that, as part of the PERM labor certification process, Form ETA-9141, the Application for Prevailing Wage Determination must be filed with the Department of Labor. The purpose of this form is to ensure that the foreign worker is being paid market rate and is not undercutting the wages of American workers. If, after the prevailing wage determination is issued and the Department of Labor states that your hourly wage must be higher for your employer to begin the labor certification process. Then, the employer must have the ability to pay to pay the offer wage during this process, which may be a burden for newer and smaller employer.Overall, these are direct financial cost to the employer.
Time Cost
Beyond the financial costs, there are additional time commitments. It takes time to prepare the forms for the Department of Labor, such as a Form ETA-9141, the Application for Prevailing Wage Determination and Form ETA 9089, Application for Permanent Employment Certification, which are required forms to obtain a labor certification. Then, during the recruitment process, if employment applications are received, it takes time to review them and determine whether a qualified applicant has applied. If a qualified applicant applies, the candidate must be interviewed and, if qualified, then this terminates the PERM process for the foreign worker. This means that, if the employer wants to petition the foreign worker again, they have to start the process over again. If no qualified worker applies, the PERM process can continue. However, even when there are no complications, when factoring attorney preparation and Department of Labor processing time, the processing time to obtain a labor certification can take at least a couple years. The time required to prepare, file and wait for the approval of Form I-140, Immigrant Petition for Alien Workers, which must be submitted and approved before the foreign worker is eligible for adjustment of status to permanent resident with USCIS or consular processing abroad to obtain an immigrant visa, can add an additional year under normal processing. In short, it may take some years for the foreign worker to get permanent residence.
Additional Factors
The PERM process may impose some limitations on how a company may operate. One notable example is in the case of an employee layoff. If an employer lays off a worker in the same or similar position in the area of intended employment within six months of filing Form ETA 9089, Application for Permanent Employment Certification, for which the employer is seeking a labor certification, this means that the employer must notify all potential laid off workers. In short, this means that an employer may have to decide between laying off a worker and disrupting a foreign worker’s PERM process. Moreover, if the PERM application is audited, the company’s lawyer will have to respond to the Department of Labor’s requests, which can lead to additional time, costs and uncertainty during the process. Given the extensive amount of time for the PERM labor certification, I-140 approval and adjustment of status or consular process, an employer may not know if there is a labor need for your position in the future.
Lastly, once the process is completed and the foreign worker has been issued their green card, an employer cannot legally prevent the employee from changing their job. In fact, under The American Competitiveness in the Twenty-First Century Act (AC21), if the I-485 petition has been pending for at least 180 days, the underlying I-140 petition has been approved, and you will be working in the same or a similar occupational classification as your original job, you may change your job. In short, a process that takes years may result in little benefit for the petitioning employer if you change your job as soon as you are eligible. Given these costs and challenges, many employers may require their foreign workers to work some years before petitioning them for a green card or will simply not petition their foreign employees.
Options If Employer Is Unwilling to Petition a Green Card
If your current employer is unwilling to petition you for a green card, you may look into other options to obtain a green card. An option is to change employers. USCIS has a webpage called H-1B Employer Data Hub which has data from 2009 to 2026 of employers who have filed petitions to employ H-1B workers. This will give you information about companies that are willing to petition foreign workers. You may also consider self-petitioning employment-based green card categories such as EB-1A, which is for workers with extraordinary ability, and EB-2 NIW (national interest waiver), which allows workers who qualify for the EB-2 category to bypass the labor certification process and file directly with USCIS if they meet certain requirements.
Contact a Windsor-Detroit Immigration Lawyer for Employer Sponsorship Alternatives
While it may be frustrating and disappointing to not be able to find an employer who is willing to petition you for permanent residency, there are alternatives. As a Canada-U.S. business immigration lawyer based in Windsor, Ontario and serving clients in the Detroit, Michigan area, I regularly consult professionals and discuss their immigration options. If you are a professional who needs help determining their employment-based permanent residency options, please reach out. I would be happy to discuss your situation and help you determine the best path forward.
Last Updated on July 1, 2026 by Ernest J. Edwards
