If you intend to live and work permanently in the United States, you will want to apply for an immigrant visa. The four primary categories of immigrant visas are immediate relatives, special immigrants, family-sponsored, and employer-sponsored. Here at ILG, we specialize in dealing with cases that are employment-based.
Many people become permanent residents through a job or offer of employment. Some categories require a certification from the U.S. Department of Labor to show that there are not enough U.S. workers who are able, willing, qualified, and available in the geographic area where the immigrant is to be employed and that no American workers are displaced by foreign workers. In other cases, highly skilled workers, those with extraordinary ability in certain professions, and investors/entrepreneurs are given priority to immigrate through several immigrant categories. In all cases, the process involves several steps.
For a complete list of the different types of Immigrant visas please visit: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html
The main ways to immigrate based on a job offer or employment are listed below.
PERM Labor Certification
There are several ways to apply for U.S. lawful permanent residence. The most common employment-based method is through the following three-step process:
1) Employer files a PERM labor certification application with the U.S. Department of Labor (DOL).
2) Employer files Form I-140 Immigrant Petition with U.S. Citizenship and Immigrant Services (USCIS).
3) Employee files Form I-485 Application to Register Permanent Residence or Adjust Status, with USCIS, or alternatively proceeds with consular processing of immigrant visa at a U.S. embassy or consulate.
A certified PERM labor certification application is a finding by the Department of Labor (DOL) that there are not sufficient U.S. workers who are able, willing, qualified, and available to do a specific job that is being offered to a non-U.S. worker. The PERM labor certification application details the terms and conditions of the offered position, including the minimum education and experience requirements for the position.
Prior to filing a PERM labor certification application, an employer must conduct specific recruitment, as outlined by the DOL regulations, to test the U.S. labor market and to determine whether or not there are sufficient U.S. workers who are willing, able, qualified, and available to perform the identified job. The pre-filing recruitment efforts include advertising for the position through several media in compliance with the procedures and within defined time frames; evaluating applicants’ qualifications, and developing and retaining documentation of the employer’s compliance with the regulations. Employers must also obtain a prevailing wage determination from the government to ensure that the offered salary meets or exceeds the prevailing wage for the area of intended employment.
PERM labor certification is an attestation-based process, where the employer completes and files ETA Form 9089 with the DOL either electronically using a web-based form or by directly mailing the application. The employer is not required to submit any supporting documentation at the time of filing the ETA Form 9089. The DOL may audit an application based on a random selection for quality control or upon a selection criteria that allow problematic applications to be identified. If the DOL issues an audit, the employer is then required to submit a signed copy of the ETA Form 9089 and copies of all supporting documentation to the DOL for review to determine the employer's compliance with the pre-filing requirements.
The DOL requires employers to retain copies of all PERM labor certification applications and all supporting documentation for a period of five years from the date of filing an application. This includes retaining copies of the certified Form 9089, documentation of the recruitment efforts, such as copies of print advertisements, the resumes received in response to the advertisements and the recruitment results. These documents must be made available to the DOL upon request at any time during the five year document retention period.
Alternatives to Labor Certification
There are five categories for employment-based immigration and some categories do not require the filing of a PERM labor certification application. If an applicant qualifies for a preference category that does not require a PERM labor certification application, then the lawful permanent resident process is reduced to a two-step process that begins with the filing of a Form I-140 immigrant petition. Employment-based preference categories that do not require PERM labor certification are outlined below and they include:
- Individuals of Extraordinary Ability
- Outstanding Researchers and Professors
- Multinational Managers and Executives
- National Interest Waivers
- Schedule A Occupation
Individuals of Extraordinary Ability
The first preference employment-based category of individuals of extraordinary ability does not require a PERM labor certification application.
Individuals of extraordinary ability are those with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim as evidenced through extensive documentation, who seek to enter the U.S. to continue to work in the area of extraordinary ability and whose entry into the U.S. will substantially benefit the U.S. This category is intended for the small percentage of individuals who have risen to the very top of the field of endeavor, and whose achievements have been recognized in the field of expertise.
An offer of employment is not required for this category, although the individual must demonstrate that he or she will continue to work in the field of extraordinary ability. An individual may therefore self-petition under this category and file his or her own I-140 immigrant petition, which is typically otherwise filed by an employer on behalf of the sponsored non-U.S. worker.
To qualify for this category as an individual of extraordinary ability, an applicant may present evidence of a one-time achievement, such as the receipt of an internationally recognized award like the Nobel Prize or an Academy Award. However, more commonly, an individual must demonstrate his or her extraordinary ability on the basis of a career of acclaimed work in the field of endeavor by submitting evidence of at least three of the following ten criteria:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
- 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 individual’s work in the field.
- Participation as a judge of the work of others in the same or an allied field. Participation may be as an individual or as a member of a panel of judges.
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
- Authorship of scholarly articles in the field, in professional or major trade publications or other major media.
- Display of the individual’s work in the field at artistic exhibitions or showcases.
- Performance in a leading or critical role for organizations or establishments that have a distinguished reputation.
- High salary or other significantly high remuneration for services, in relation to others in the field.
- Commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
The applicant must prove his or her extraordinary ability in the relevant field. Submission of evidence of three of the ten criteria listed above is minimally required to qualify for this category. However, meeting three of the above ten criteria does not automatically qualify an applicant as an individual of extraordinary ability and USCIS may require additional evidence. This is because the evidence submitted may in some instances be insufficient to show sustained or international acclaim.
In circumstances where the above criteria do not readily apply to an occupation, immigration regulations permit the individual to submit comparable evidence to establish his or her extraordinary ability in the field.
Outstanding Professors and Researchers
The first preference employment-based category includes Outstanding Professors and Researchers and does not require a PERM labor certification application. An Outstanding Researcher or Professor is an individual who is recognized internationally as outstanding in a specific academic area of teaching or research and who has at least three years of experience in teaching or research in the academic area. To qualify for this first preference employment-based category the individual must also have a job offer for: 1) a tenured or tenure-track position at a university or institution of higher education to teach in the academic field; 2) a comparable position with a university or institution of higher education to conduct research in the field; or 3) a comparable position to conduct research with a private employer if the employer employs at least three full-time researchers and the employer has achieved documented accomplishments in the academic field.
An offer of employment is required and the Form I-140 immigrant petition must be filed by the sponsoring employer on behalf of the non-U.S. worker beneficiary. An individual may not self-petition under this category. An individual must demonstrate that he or she is recognized internationally as an outstanding professor or researcher by submitting evidence of at least two of the following six criteria:
- Receipt of major prizes or awards for outstanding achievement in the academic field.
- Membership in an association which require outstanding achievements in the academic field.
- Published material in professional publications written by others about the individual’s work in the academic field.
- Participation as a judge of the work of others in the same or an allied field. Participation may be as an individual or as a member of a panel of judges.
- Original scientific or scholarly research contributions to the academic field.
- Authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field.
- Evidence of original scientific or scholarly research contributions to the academic field.
Submission of evidence of two of the six criteria listed above is minimally required to qualify for this category. However, meeting two of the above six criteria does not automatically qualify an applicant as an outstanding professor or researcher and USCIS may require additional evidence. This is because the evidence submitted may in some instances be insufficient to show international recognition.
Multinational Managers and Executives
The first preference employment-based category includes multinational managers and executives and does not require a PERM labor certification application. An offer of employment is required and the Form I-140 immigrant petition must be filed by the sponsoring employer on behalf of the non-U.S. worker beneficiary. An individual may not self-petition under this category.
The Multinational Manager or Executive category applies to intracompany transferees who were previously employed abroad in a managerial or executive capacity, and who are entering the U.S. to assume a managerial or executive role with the same employer, an affiliate or a subsidiary. To qualify for this first preference employment-based category the individual must have been employed abroad for at least one year in a managerial or executive capacity within the three years preceding the initial entry to the U.S., and must have an offer of employment in the U.S. in a managerial or executive capacity by the same employer or by a branch, parent, affiliate, or subsidiary of that same employer.
The U.S. employer must provide clear documentation of the qualifying relationship of ownership and control between the U.S. office and the foreign office where the individual gained his or her qualifying experience as a manager or executive.
To qualify for the Multinational Manager or Executive category, an employer must demonstrate the employee’s management/executive-level qualifications for both the position in the U.S. and the position with the qualifying organization abroad. Specifically, to qualify as a manager, an individual must meet the following four criteria:
- Manage the organization, a department, subdivision, function or component.
- Supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function within the organization or department of subdivision of the organization.
- Have authority to hire and fire or recommend personnel actions, or if the individual has no direct supervisory duties, he or she functions at a senior level.
- Exercise discretion over the day-to-day operations of the activity or function.
A first-line supervisor does not qualify as a manager for this category unless he or she supervises other professional-level employees. If an individual does not have any direct reports, he or she may still qualify as a functional manager. A functional manager is an individual who is a senior person within the organization, who manages an essential function, and who is primarily engaged in fulfilling management duties. In this regard, the functional manager need not oversee any employees.
To qualify as an executive, an individual must meet the following four criteria:
- Direct the management of an organization, or a component or function.
- Establish goals and policies.
- Exercise wide latitude in discretionary decision-making.
- Receive only general supervision or direction from higher level executives, board of directors or stockholders.
National Interest Waivers
The national interest waiver category falls within the second preference employment-based category, which is available to individuals with advanced degrees. USCIS may waive the regular labor certification requirement for employment based immigration for the designated beneficiary, if it is in the national interest of the U.S.
USCIS considers many factors in determining whether or not the waiver of the labor certification requirement is in the national interest of the U.S. The factors include but are not limited to, whether or not the grant of a waiver will result in:
- 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.
To demonstrate national interest, you must present proof that the beneficiary’s work: 1) Is in an area of substantial intrinsic merit; 2) provides a benefit that is national in scope; and 3) serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications. The crux of a national interest petition is often met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field. An offer of employment from a U.S. employer is not required for this category. An individual may self-petition under this category.
Schedule A Occupation:
Group I: Foreign Born Nurses & Physical Therapists
Schedule A is a list of occupations for which the U.S. Department of Labor has determined that there is an insufficient number of U.S. workers who are able, willing, qualified and available. Therefore, Schedule A occupations are exempt from the PERM labor certification process. Schedule A explicitly lists Physical Therapists and Professional Nurses. Schedule A occupations do not require labor certifications and do require an offer of employment. Physical Therapists and professional nurses qualify for the third preference employment based category.
To qualify as a physical therapist, a foreign born physical therapist must possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice.
To qualify as a professional nurse, a foreign born nurse must possess a diploma in nursing and the following:
- A full and an unrestricted license to practice nursing in the state of intended employment;
- Proof that s/he successfully completed the Commission on Graduates of Foreign Nursing Schools (CGFNS) certification program; or
- Have passed the National Council Licensure Examination for RNs (NCLEX-RN), which is administered by the National Council of State Boards of Nursing.
In general, state nursing boards require passage of the National Council Licensure Examination (NCLEX-RN) exam. However, licensure requirements can and do differ significantly from state to state. It is important to contact the state licensing authority for guidelines in the state of intended employment. Contact information for the State Boards of Nursing is available on National Council of State Boards of Nursing’s website at www.ncsbn.org.
In the alternative to directly pursuing state licensure, a foreign born nurse can complete the CGFNS certification program. The CGFNS certificate provides evidence that the nurse has successfully completed a three step review process: 1) a review of foreign nursing credentials; 2) passage of the CGFNS qualifying exam or NCLEX-RN exam; and, 3) an English language proficiency exam. Upon the successful completion of the three steps, the Commission on Graduates of Foreign Nursing Schools will issue the foreign born nurse a CGFNS certificate.
If the foreign born nurse has already passed the NCLEX-RN exam, then s/he is not required to obtain a CGFNS certificate. Native-English speaking applicants who received their nursing education in Australia, Canada (except Quebec), Ireland, New Zealand or the United Kingdom may be exempt from the English language proficiency requirement. Full details of the CGFNS certification program can be found on their website at www.cgfns.org.
A foreign born nurse must meet the above mentioned requirements to qualify for the first stage of the green card process, specifically for the filing of an I-140 Petition for Alien Relative. However, in order to complete the green card process the foreign born nurse will also have to obtain a VisaScreen Certificate. The VisaScreen certification program consists of three parts: 1) a credentials review; 2) passage of either the CGFNS qualifying exam or NCLEX-RN exam; and 3) an English language proficiency exam. The VisaScreen certification program is administered by the International Commission on Healthcare Professions (ICHP), a division of CGFNS, for the purpose of verifying that the foreign healthcare worker’s education, training, licensing, experience, and English competency are comparable to American healthcare workers.
Group II: Persons of Exceptional Ability in the Sciences, Arts and Performing Arts
Persons of exceptional ability in the sciences or arts or performing arts who have been practicing the same science or art during the year prior to submitting an application and who intend to practice the same in the U.S. may apply under this category. This includes college and university teachers of exceptional ability. Additionally for those applying in the performing arts, the prior work abroad and the intended work in the U.S. must require the exceptional ability. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered and it must be distinguished from the “national interest” requirement for this category. Exceptional ability may be demonstrated by meeting at least two of seven requirements set forth by USCIS.
Documentary evidence must be submitted as evidence of widespread acclaim and international recognition by experts in the field. Evidence must include at least two of the following:
- Receipt of internationally recognized prizes or awards;
- Membership in international associations which require outstanding achievement of their members;
- Published materials in professional publications about the person;
- Participation on a panel or individually as a judge of the work of others;
- Original scientific or scholarly articles of major significance in the field;
- Authorship of published scientific or scholarly articles in the field in international journals or journals with an international circulation;
- Display of the work at artistic exhibitions in more than one country
An offer of employment from a U.S. employer is required for this category.
Adjustment of Status (“AOS”)
The last and final stage of the permanent resident process allows for the individual employee and the beneficiary of Form I-140 immigrant petition to file his or her own Form I-485 application to register permanent residence or adjust status (AOS) with the USCIS. The employee’s spouse and minor children are also eligible to file their I-485 applications with the employee as his or her dependents. However, in order to file an I-485 application, a person must be physically present in the U.S., must be the beneficiary of an I-140 immigrant petition and an immigrant visa must be available. Filing Form I-485 is not available to individuals who are outside of the U.S.
If an immigrant visa is available, Form I-140 and Form I-485 can be filed concurrently with the USCIS. If an immigrant visa is not available, then Form I-140 immigrant petition must first be filed and Form I-485 is filed at a later date whenever the immigrant visa becomes available.
The Employment-Based Immigrant Visa Process
Congress makes available approximately 140,000 immigrant visas for employment-based immigration annually. There are five employment-based “preference” categories, and each preference category is allocated a certain number of immigrant visas (approximately 40,000 for the first three categories). Also, each country is allowed a maximum ceiling per preference category (charged against the individual’s country of birth). Currently, immigrant visa numbers are over-subscribed, which means that there are more people applying for permanent residence than there are immigrant visas available. Therefore, for many applicants there is a significant waiting period before they are able to file Form I-485 and/or before they are granted lawful permanent resident status.
The U.S. Department of State (DOS) issues a monthly visa bulletin that indicates which countries and categories fall under these limitations. DOS monitors visa availability based on “priority dates.” A “priority date” is the date a person filed the first step of the permanent resident status, i.e. either the date the PERM labor certification application was filed or for non-labor certification based applications, the date the I-140 immigrant petition is received by the USCIS.
The Visa Bulletin is found at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. A 'C' under a particular preference category on the visa bulletin chart indicates that the preference category is "current" or that there are immigrant visas available for individuals who fall within that category. Those individuals can, therefore, file a Form I-485 application or if their I-485 application is pending with the USCIS, the application may be adjudicated.
If a date is indicated under a particular preference category on the visa bulletin chart, this indicates that there is a waiting period for individuals within that category to file Form I-485 or if their I-485 application is pending with the USCIS, there is a waiting period before the USCIS may adjudicate the pending application. Specifically, only persons with a priority date before the date indicated on the visa bulletin may file I-485 application or whose I-485 application may be adjudicated “U” under a particular preference category on the visa bulletin chart indicates that immigrant visas are “unavailable” in that preference category and for the identified country. Those individuals must also wait until an immigrant visa becomes available to file an I-485 application.
All I-485 applicants are also eligible to apply for interim employment authorization and may also be eligible to apply for interim travel authorization while the I-485 application is pending review and final adjudication. This applies to the principal applicant and all dependent applicants. The interim employment and travel authorization granted to I-485 applicants is separate and distinct from any employment and/or travel authorization granted subsequent to a person’s nonimmigrant status, such as H-1B status. Upon the approval of the I-485 application, the applicant is granted U.S. lawful permanent resident status and is mailed a permanent resident card (green card).
A beneficiary of an I-140 immigrant petition may either file Form I-485 Application to Register Permanent Residence or Adjust Status, if eligible, or alternatively, may apply for an immigrant visa via consular post processing at a U.S. embassy or consulate. Consular post processing of an immigrant visa is the only option available to individuals who are outside of the U.S.
To pursue consular post processing, an individual must be the beneficiary of an approved I-140 immigrant petition and an immigrant visa must be available. Unlike the I-485 application, an immigrant visa application cannot be concurrently filed with an I-140 immigrant petition. The application is made at the U.S. embassy or consulate that has jurisdiction over the applicant’s place of residence. In cases of hardship, an applicant may be permitted to consular process his or her immigrant visa application at another consular post.
Following the approval of an I-140 immigrant petition, the USCIS will forward the petition to the Department of State’s National Visa Center (NVC). The National Visa Center is an immigrant visa processing center. The center retains all approved I-140 petitions that it receives until a case is ready for adjudication by a consular post. At such time, the NVC will forward the approved I-140 petition to the designated consular post and will send the applicant an immigrant visa packet. The immigrant visa packet contains instructions on completing the appropriate application forms, paying the required processing fees and a list of supporting documents that must be submitted directly to the NVC.
When the NVC receives the completed application forms with all of the requested supporting documentation and appropriate fees, it will review the documentation and determine whether additional information is required. If the documentation is complete, the NVC will notify the designated consular post that the case is ready to proceed and will forward them the documentation. The consular post will then schedule the applicant for an immigrant visa interview at the U.S. embassy or consulate and an interview notice will be mailed directly to the applicant. During the visa interview, the consular officer examines the documentation, and interviews the applicant to determine whether or not the applicant is admissible to the U.S. as a lawful permanent resident. If the applicant is eligible for an immigrant visa, the consular officer will approve the application, and will issue an immigrant visa valid for six months. The applicant must enter the U.S. within that six month period to complete the permanent resident process. The applicant will be granted lawful permanent resident status upon his or her admission to the U.S. using the immigrant visa. At the time of admission, the applicant’s immigrant visa will be endorsed and serves as a temporary Form I-551 evidencing permanent residence status for one year. A physical permanent resident card (green card) is subsequently issued and mailed to the applicant.
If you seek further information regarding Immigration Law Group’s areas of legal practice, or if you have any additional questions, please feel free to contact us via telephone at (408) 432-9200.