Permanent Residence Through Employment

Work-Based Solutions:

Are you currently working in the U.S. under a non-immigrant visa, and wish to obtain legal permanent residence? You may be eligible to become a permanent resident of the United States through your current employment, or through an offer of future employment…

To apply for U.S. permanent residence (or “green card” status) based upon employment, there are several methods. The most common one is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the U.S. Department of Labor’s (DOL’s) newly issued PERM regulation.

PERM Labor Certification

Under PERM, the DOL is responsible for the review and adjudication of labor certification applications; the State Workforce Agencies are no longer involved in the review process. Preparation of the labor certification application package under PERM still remains complex and takes more preparation time than a typical nonimmigrant (H or L) petition. When complete, the labor certification application is submitted electronically to a national DOL processing center. Electronic filing greatly reduces the recurrence of backlogs in the queue, resulting in significantly shorter processing times. The date of submission of the online form serves as the priority date for the entire permanent residency process (i.e., one’s place in the queue).

The DOL carefully reviews the labor certification application for completeness and adequacy. It may perform an audit of the application and request that documentation of the application be submitted. The online system may randomly select cases for audit as well. When the review is complete, the DOL either issues its approval or other decision based on the merits of the application. Approved applications are returned to attorneys handling the case, and signatures of the approved application are required by both the employer and the employee before it can be used in the second stage of the process.

RIR and Traditional Labor Certification

Labor certification applications filed prior to March 28, 2005, were filed under either the Reduction-in-Recruitment (RIR) or traditional labor certification procedures. Most pending labor certification applications have been transferred to a DOL Backlog Processing Center (BPC), where the application will be adjudicated. RIR applications will either be approved or be slated for supervised recruitment, along with cases that are filed as traditional labor certification applications. Under supervised recruitment, the employer is required to conduct formal recruitment for the position under the supervision of the DOL. As with all labor certification applications, approval of a case under supervised recruitment depends on the employer’s ability to demonstrate that during the recruitment period no qualified U.S. worker was available and willing to take the position. The processing times for RIR and traditional cases may take two and a half or more years for adjudication, depending on the state and region in which the case was originally filed. Some pending cases can be re-filed under the PERM procedures, which will take advantage of PERM’s faster processing while retaining the priority date of the pending application.

I-140 Immigrant Petition

Once the labor certification application is certified, it provides the basis for the company to move to the second stage of the process and file an I-140 immigrant petition with the U.S. Citizenship and Immigration Service (USCIS). USCIS then determines the “immigrant category” of the case and adjudicates the I-140 petition. Processing times may vary depending on the service center jurisdiction.

I-485 Application for Adjustment of Status to Permanent Residence

The I-140 petition provides the basis for the employee’s I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her I-485 application concurrently with the I-140 or after the I-140 is filed, as long as his or her “priority date” is current. “Priority dates” are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The U.S. Department of State issues a monthly Visa bulletin, which indicates which countries and categories fall under these limitations.

A ‘C’ on the charts in the middle of the bulletin means that the category is “current” and that there is no need for applicants born in that country to wait to file an AOS application. If a date is indicated, a person born in that country (with certain exceptions) must wait to file the AOS application if his or her priority date is not current (i.e. his or her labor certification was filed after that date).
Along with the AOS application, requests for travel permission (advance parole) and employment authorization for the employee and dependents may be filed. Once the advance parole application is approved, the employee and dependents will be able to travel outside the U.S. even if they do not have valid nonimmigrant status. Once the employment authorization document (EAD) is approved, the employee’s dependents will be authorized to work in the U.S. With an AOS application approval, the employee and dependents become U.S. permanent residents and green cards are issued through the mail.

If you have questions about the labor certification-based green card process, please contact us.

Alternatives to Labor Certification:

I-140 Immigrant Visa Petitions for:

  • Extraordinary Ability Individuals
  • Outstanding Researchers & Professors
  • Multinational Managers & Executives
  • National Interest Waivers

In applying for employment-based permanent residence (“green card”), certain distinguished individuals may be eligible to bypass filing the labor certification with the Department of Labor, and directly file the I-140 immigrant petition with the Immigration and Naturalization Service (“INS”). The four employment-based immigrant visa categories are 1) Extraordinary Ability Immigrants; 2) Outstanding Researchers and Professors; 3) Multinational Managers and Executives; and 4) National Interest Waivers.

Extraordinary Ability

Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB1-1). An individual may qualify for a green card in this category if his/her extraordinary ability in the sciences, arts, education, business, or athletics has been demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the U.S. to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the U.S.

No offer of employment is required; however, the individual must demonstrate that he/she will continue to work in the field of extraordinary ability. An individual may, therefore, self-petition under this category.

USCIS defines “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor,” as proven by “sustained national or international acclaim” and that one’s achievements have been recognized in the field of expertise.

For this special category, one may qualify by demonstrating a one-time achievement (such as receipt of a major, international recognized award). Examples of this type of one-time achievement include receipt of the Nobel Prize, Pulitzer or Academy Award. Alternatively, and more commonly, one may demonstrate extraordinary ability qualification on the basis of a career of acclaimed work in the field of endeavor. USCIS considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category:

  • Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
  • Published material in professional or other major trade publications or major media, relating to the one’s work in the field;
  • Evidence of one’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
  • Evidence of one’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  • Evidence of one’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  • Evidence of the display of one’s work in the field at artistic exhibitions or showcases;
  • Evidence that one has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
  • Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;
  • Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales; or
  • Where the above standards do not readily apply to an occupation, immigration regulations permit comparable evidence.

It is not enough to simply meet three of the ten regulatory criteria if sustained international or national acclaim is not proven. The overall evidence must demonstrate that his/her achievements in his/her field have been recognized as extraordinary, and therefore, these petitions are generally submitted with voluminous documentation. This category is an elite one; accordingly, only the very top in their respective field will qualify.

Outstanding Researchers & Professors

The outstanding researcher and professor category is a first preference employment-based immigrant visa category (EB1-2).

An outstanding researcher or professor is defined as an individual who is recognized internationally as outstanding in his/her specific academic area of teaching or research. The individual must possess at least 3 years of experience teaching or in research in the academic area. Additionally, the individual must have a job offer for: 1) a tenured or tenure-track position within a university or institution of higher education to teach in the academic area; 2) a comparable position with a university or institution of higher education to conduct research in the area; or 3) a comparable position to conduct research for a private employer. To qualify, the private employer must have achieved documented research accomplishments, and must employ at least three persons in full-time research.

An individual may not self-petition under this category. The immigrant visa petition must be filed by a qualified U.S. employer. In addition, a permanent job offer is required. For purposes of this category, USCIS defines a permanent position as tenured, tenure-track, or for a term of indefinite or unlimited duration where the employee will have a continued expectation of continued employment unless there is good cause for termination.

USCIS considers the following types of evidence in evaluating whether an individual qualifies as an outstanding professor or researcher:

  • Documentation of the beneficiary’s major prizes or awards for outstanding achievement in the academic field;
  • Documentation of the beneficiary’s membership in associations in the academic field which require outstanding achievements;
  • Published material in professional publications written by others about the beneficiary’s work in the academic field;
  • Evidence of the beneficiary’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
  • Evidence of the beneficiary’s original scientific or scholarly research contributions to the academic field; or
  • Evidence of the beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

It is not enough to simply meet two of the six regulatory criteria. The overall evidence must prove international recognition as defined by USCIS.

Multinational Managers & Executives

Managers or executives of multinational companies are eligible for permanent residence. The E13 Multinational Manager / Executive category applies to intracompany transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial or executive capacity. The multinational manager / executive petition requires clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office. Managerial and executive candidates typically enter the U.S. in L-1A or E-2 status, and then apply for their green cards in the E13 Multinational Manager / Executive category.

To prove that an employee has worked or will work in a managerial capacity, an employer must show that the employee:

  • Manages the organization, or a department, subdivision, function, or component of the organization;
  • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
  • If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
  • Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

To prove executive duties, the employer must prove that the employee has performed or will perform the following duties:

  • Directs the management of the organization or a major component or function of the organization;
  • Establishes the goals and policies of the organization, component, or function;
  • Exercises wide latitude in discretionary decision making; and
  • Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

During the period that the employee worked for the company abroad, the foreign employer and the petitioning U.S. entity must have maintained a qualifying corporate relationship such that the transfer of the employee to the United States may be considered a transfer within a single company. The entities among which the employee transfers must have common ownership and control to qualify for use of the multinational manager or executive immigrant visa category. To prove this, the petitioning U.S. employer must show that it is the same company as the overseas employer or that it is the parent, subsidiary, or affiliate of the overseas employer.

Upon receipt of an approved I-140 immigrant petition, an individual may obtain permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States.

National Interest Waivers

A person whose immigration is in the national interest of the U.S. may avoid the labor certification process and obtain their permanent residency.

National interest waiver petitions fall under the second preference employment-based immigrant visa category, which is available to individuals with advanced degrees or to individuals who possess exceptional ability in the sciences, arts or business. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered. It may be demonstrated by meeting at least three of six requirements set forth by USCIS and must be demonstrated apart from the national interest prong. No job offer is required for the national interest waiver category.

USCIS has indicated a number of areas it believes to be in the U.S. national interest. These include:

  • Improving the U.S. economy;
  • Improving wages and working conditions in the U.S. economy;
  • Improving education for U.S. children and under-qualified workers;
  • Improving health care;
  • Providing more affordable housing;
  • Improving the environment; or
  • When an interested government agency supports the request.

This is not an all-inclusive list. It is possible to establish one’s admission in the national interest in other ways, including in the development of critical technologies.

USCIS recently issued a decision that defines this category more clearly. To immigrate under this category, one must prove his or her work: a) is in an area of substantial intrinsic merit; b) provides a benefit that is national in scope; and c) serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.

Critical elements in establishing national interest may also be met by demonstrating one’s outstanding contributions through supporting testimonial letters from experts in the field.

Conclusion

Preparation of the I-140 petition package for extraordinary ability, outstanding professors and researchers, and national interest waiver cases is a methodical process that takes more time than the preparation of a typical nonimmigrant application. Once completed, the petition is filed with the appropriate USCIS Service Center. Upon receipt, USCIS assigns a date to the petition, which serves as the “priority date” for the entire case.

The approved I-140 petition provides the basis for the beneficiary/(employee’s) I-485 application for adjustment of status to permanent residence (AOS). When the employee’s “priority date” is current, the employee, along with his/her dependents, can file the I-485 application with USCIS. “Priority dates” are the queuing system for cases under quota. At this time, only persons born in the Peoples Republic of China (“PRC”) are required to wait for their priority dates to become current in order to submit their first preference work-based AOS applications, because of per country limitations and backlogs. Currently, persons born in the PRC and India are also required to wait for their priority dates to become current in order to submit their second preference work-based AOS applications.

Along with the AOS application, requests for travel permission (advance parole) and employment authorization documents (EAD) for the employee and dependents may be filed. Once the advance parole application is approved, the employee and dependents will be able to travel outside the U.S. again. Once the EAD is approved, the employee’s dependents will be authorized to work in the U.S. With the approval of the AOS application, the employee and dependents become U.S. permanent residents and a green card is issued to them through the mail.

If you have questions about the employment-based green card process without labor certification, please contact us.