Immigrant Visas
The two most common ways of securing permanent residence or a “greencard” in the United States is by familial relationship and employment. The first step in determining a foreign national’s eligibility to obtain permanent residence through employment is to classify the foreign national under one of three main permanent residence categories.
Employment Based Permanent Residence Categories
Employment Based First Preference (EB-1)
Persons of Extraordinary Ability
The first subcategory within this preference is for persons of extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Extraordinary ability means 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. Evidence of an individual’s sustained national or international acclaim may include a one time achievement of a major international award, or alternatively, at least three of the types of evidence outlined below. The individual may submit comparable evidence if the following standards do not readily apply:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields;
3. Published material about the alien in professional or major trade publications or other major media;
4. Evidence that the alien has judged the work of others, either individually or on a panel;
5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
6. Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media;
7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field;
10. Evidence of commercial successes in the performing arts.
Neither an offer of employment nor a labor certification is required for this classification; however, evidence must be provided to show that the applicant is coming to the United States to continue work in the area of expertise.
Outstanding Professors and Researchers
This category is available to internationally recognized professors and researchers with a minimum of three years experience in teaching or research in an academic discipline. While no labor certification is required, there must be an offer of ongoing employment from the sponsoring employer. The offer of employment must be for a tenure or tenure track position, or for a comparable position at a university, institute, or with a private employer to conduct research. If the employer is a private company, the department, division, or institute of the employer must demonstrate that it employs at least three full-time individuals in research positions, and that it has achieved documented accomplishments in an academic field.
Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:
1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien's work in the academic field;
4. Participation as a judge of the work of others in the same or an allied academic field;
5. Original scientific or scholarly research contributions in the field;
6. Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
Multinational Executives and Managers
This category is available to executives and managers who have been employed outside the U.S. in the three years preceding the petition for at least one year in a managerial or executive capacity by a firm or corporation, or an affiliate, or a subsidiary of the employer, and seeks to continue service to that organization in the United States.
The petition must demonstrate that the prospective U.S. employer has been doing business for at least one year and that it is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad. No labor certification is required for this classification.
Employment Based Second Preference (EB-2)
This category is available to members of the professions holding advanced degrees, or for persons with exceptional ability in the arts, sciences, or business.
Advanced Degree Professionals
An advanced degree is any U.S. or foreign equivalent degree beyond a baccalaureate. A U.S. employer can file a petition in this category when the position requires an advance degree and the individual possesses such a degree. As an alternative means of qualifying as an advanced degree professional, a baccalaureate plus five years of progressive experience in the field shall be considered the equivalent of a master’s degree. Progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.
Workers of Exceptional Ability
Exceptional ability in the sciences, arts, or business requires a level of expertise significantly above the ordinary. Evidence of eligibility must include at least three of the following, or other comparable evidence if the standards below do not readily apply:
1. An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
2. Letter(s) from current or former employer(s) documenting at least ten years of full-time experience in the occupation being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the individual has commanded a salary or other remuneration for services which demonstrates exceptional ability;
5. Membership in professional associations;
6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
Labor Certification Requirement
Petitions under the EB-2 category must be accompanied by an approved individual labor certification. The labor certification process may be shortened or avoided altogether by qualifying the position as a “Schedule A” position or a position designated for “special handling” or by obtaining a national interest waiver.
Schedule A positions are those for which the Secretary of the Department of Labor has issued a blanket determination that certain occupations do not have an adverse effect on the wages and working conditions of U.S. workers and that U.S. workers are generally unavailable for these positions.
Special handling procedures apply to cases involving certain college and university teachers recruited by the college or university under its normal nationally competitive process.
A national interest waiver is available to individuals who qualify under the EB-2 category who are seeking employment in an area of substantial intrinsic merit, that he or she would benefit the U.S. on a national level to a substantially greater degree than a U.S. worker, and that the benefit to the U.S. outweighs the inherent national interest in the labor certification process.
Employment Based Third Preference (EB-3)
The EB-3 classification includes professionals, skilled workers, and other workers. An approved individual labor certification is required under this category.
Professionals must possess a baccalaureate degree or foreign equivalent, and the employer must demonstrate that such a degree is the normal requirement for entry into the occupation. There is no provision for equivalency to a baccalaureate degree based on a combination of education and experience.
Skilled workers are those in positions that require a minimum of two years of training and experience. The training requirement may be met through relevant post-secondary education.
Other workers are in positions that require less than two years of higher education, training, or experience.
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The Permanent Residence Application Process
Once the appropriate preference category has been determined, the next step is to begin the application process.
STEP 1: Labor Certification
A labor certification is required for individuals in certain preference categories to show the U.S. Department of Labor (DOL) that the company has made a good faith recruitment effort, and was unable to find a minimally-qualified U.S. worker to fill the position at issue. If a minimally-qualified U.S. worker applies for the position, the job must be offered to that individual, or the labor certification on behalf of the foreign national must be canceled.
Recruitment in Support of the Labor Certification
If the company is able to demonstrate a specific pattern of recruitment within the six months immediately preceding filing of the labor certification, the case may qualify for filing of a labor certification under the PERM (Program Electronic Review Management) system. Although not the industry standard, the U.S. Department of Labor (DOL) will require that the 6 months of recruitment include at least two Sunday ads in a major local newspaper, a posting with the State Job Board, and in most cases at least 3 other sources of recruitment.
Applicants for the position must be considered based on the true minimum qualifications for the position, which are often much lower than most employers’ definitions of the preferred qualifications for the position. If the employer wishes to exclude applicants based on its requirements which exceed what DOL considers normal for the occupation, it must be prepared to withstand a DOL audit and justify its position based on “business necessity” grounds.
Once recruitment is completed and the application is filed, the DOL is estimating it will take 45 to 60 days to adjudicate the application. If the case is audited, processing will take much longer.
STEP 2: I-140 Immigrant Visa Petition
For individuals who qualify under the preference categories not requiring a labor certification, the permanent residency process starts with filing an I-140 Immigrant Visa Petition with CIS. For all other individuals, once the labor certification is certified (approved) by the DOL, the next step is to file an I-140. The I-140 confirms that the individual qualifies for the preference category indicated on the form as well as for the labor certification approved on his or her behalf (if applicable), and that the company has the ability to pay the proffered wage.
At present, CIS now allows concurrent filing of the I-140 and Adjustment of Status Application. This means that Steps 2 and 3 may be filed together (as long as there is no quota backlog). Note that concurrent filing is not available for Consular Processing.
Historically there has been a backlog in the availability of immigrant visas for persons born in India and China. From 2000 to 2004, there had been no backlog. However, the backlog returned as of January 2005. As of July 1, 2005, the backlog has applied to individuals of all nationalities in the employment-based third (EB-3) preference category. As of October 1, 2005, the backlog has applied to all nationalities in the EB-3 category, as well as Chinese and Indian nationals in the EB-1 and EB-2 categories. This means that these individuals cannot proceed to Step 3 of the green card process until there is a visa available for them. Availability of immigrant visas may be tracked on the State Department website. Please note that the backlogs do not advance or retrogress in a consistent manner; from month to month, the priority dates and nationalities affected can change.
Due to the backlogs, many individuals born in affected countries are interested in qualifying for a higher employment-based preference category, where the wait for a visa may be shorter. Those applying on the basis of a labor certification are eligible for classification in either the second or third employment based categories (EB-2 or EB-3), depending upon the requirements for the position. If the position requires a minimum of a Master's degree, or a Bachelor's degree and 5 years of progressive experience, then the position will be classified as EB-2. If it requires anything less than that, it will be classified as EB-3. Note that the preference category is determined by the position, not the individual. Whether the position qualifies for EB-2 classification is the threshold question. The company must make this determination based on its hiring practices. If the position qualifies, then we move to looking at the individual’s qualifications.
STEP 3: Adjustment of Status or Consular Processing
At this stage, the focus is on determining if there is anything in the individual’s background which would prohibit them from becoming a lawful permanent resident. For more detailed information on Adjustment of Status and Consular Processing, please refer to the Frequently Asked Questions section of our website.
Adjustment of Status
Once the I-140 is approved, if there is no quota backlog in that category and for that nationality, the beneficiary may apply for adjustment of status in the U.S. Work authorization and travel documents may be obtained during the pendency of the adjustment of status application. Processing times can be found at www.uscis.gov. Those with valid H or L nonimmigrant status may not need separate work and travel authorization.
The spouse and unmarried minor children under age 21 are eligible to apply for adjustment together with the principal applicant. At this stage, a separate application is filed for each member of the family. Applications for work authorization and travel documents may also be filed for family members at this stage.
Upon approval of the adjustment application, CIS produces and mails the permanent resident card directly to the beneficiary, usually within a few months of approval of the adjustment.
Consular Processing
Instead of adjusting status in the U.S., the individual may obtain an immigrant visa via consular processing, which involves an interview at the U.S. Consulate in their home country. Processing times for consular processing vary depending on the Consulate and the time of year. Consular processing is not recommended for all cases.
The spouse and unmarried minor children under age 21 are eligible to apply for consular processing together with the principal applicant. At this stage, a separate application is filed for each member of the family. Note, however, that unlike the adjustment of status route, consular processing does NOT provide for work authorization and travel documents for the principal applicant or dependent family members.
Upon re-entry to the U.S. from the immigrant visa interview abroad, the individual is issued the “green card” stamp at Immigration Inspections at the airport. As above, the CIS then mails the permanent resident card to the individual, usually within a few months of entry to the U.S.
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