Employment-based Immigration

Although there are many paths to becoming a permanent resident in the United States, the two most common are family ties to a United States citizen and employment in the United States. Therefore, it is not surprising that U.S immigration laws and regulations governing these areas are constantly changing. Our firm has stayed abreast of these complex and changing immigration laws

THE VARIOUS WAYS THAT A FOREIGN NATIONAL CAN OBTAIN PERMANENT RESIDENT STATUS (“GREEN CARD”) IN THE UNITED STATES THROUGH EMPLOYMENT

A. FIRST PREFERENCE CATEGORY-EB-1: PRIORITY WORKERS

This category includes foreign nationals with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers.

1. EXTRAORDINARY ABILITY FOREIGN NATIONALS

Persons with extraordinary abilities in the sciences, arts, education, business, or athletics with sustained national and international acclaim and whose achievements in their fields of endeavor have been recognized and documented. They must also show that they are coming to work in their area of expertise and that entry and work will substantially benefit the United States prospectively. No employment or employer is needed for this petition.

WHAT IS REQUIRED TO PROVE ELIGIBILITY?

To prove eligibility for this visa, a foreign national must show:

1.That they have received a major, internationally recognized award (such as a Nobel Prize, Pulitzer Prize, Oscar, or Olympic Medal) or at least 3 out of the following 10 requirements:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence in your field.
• Membership in associations in your field that require outstanding achievements of their members
• Published material about your work in professional or major trade publications or other major medial
• Evidence of participation, individually or on a panel, as a judge of the work of others in your field.
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
• Evidence of your authorship of scholarly articles in the field, professional or major trade publications, or other major media.
• Evidence of the display of your work in the field at artistic exhibitions or showcases
• Evidence that you have performed in a leading or critical role for organizations with a distinguished reputation.
• Evidence you have commanded a high salary or other significantly high compensation for services in relation to others in your field
• Evidence of your commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

This path to obtaining permanent residency in the United States has some obvious advantages, including:

• You do not need an employer to file for you
• You do not need a job offer
• The lengthy PERM labor certification process is not required
• The premium process is available such that for an additional fee, the petition can be approved within 15 days or less.

2. OUTSTANDING PROFESSORS AND RESEARCHERS

These are persons who have been internationally recognized as outstanding in a specific academic area. They must have at least 3 years of experience in teaching and/or research in the academic area and seeking admission for

• a tenure or track teaching position at a university or institution of higher education
• a comparable position at a university or institution of higher education to conduct research
• a comparable position to conduct research with a private employer if it employs at least 3 full-time researchers and the departmental, division, or institution has achieved documented accomplishments in an academic field.

WHAT IS REQUIRED TO PROVE ELIGIBILITY?

To prove their eligibility for this visa, a foreign national must show at least 2 of the following:

1. Receipt of major prizes or awards for outstanding achievement
2. Membership in an association is required
3. Published material in professional publications written by others about the applicant’s work
4. Evidence of the person’s participation as a judge of the work of others
5. Evidence of original scientific research
6. Authorship of scholarly books or articles in the field
7. Comparable Evidence where the above standards do not readily apply

3. MULTINATIONAL EXECUTIVES AND MANAGERS

These categories of persons would qualify for E-B1 visas if they can meet the following requirements:

1. Employed abroad for one year within the last 3 years by a firm or corporation or other legal entity or an affiliate or subsidiary of such entity
2. Seeks to enter the United States to continue to render services to the same employer, or subsidiary or affiliate, in a managerial or executive capacity
3. The company must be doing business in the United States for at least 1 year.
4. No labor certification is required, but a job offer by a U.S. organization is a requirement.

HOW WE CAN ASSIST YOU

Over the years, we have assisted many aliens with extraordinary abilities to obtain permanent residency in the United States. We guided them in putting together the necessary evidence and prepared their petitions articulating their eligibility.

B.SECOND PREFERENCE CATEGORY (EB-2)

Members of Professions Holding Advanced Degrees or Aliens of Exceptional ability

This visa category is open to foreign nationals who are members of the professions and hold advanced degrees (above a B.A.) or the equivalent. Or because their exceptional abilities in sciences, arts, or business will substantially benefit the national economy, cultural or educational interest, or welfare of the U.S. prospectively and whose services are sought by an employer in the U.S.

Exceptional ability is considered to be “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Certain professional athletes may also qualify under this category. ‘To prove exceptional ability, the foreign national must provide Evidence of at least 3 of the following:

1. A degree relating to the area of extraordinary ability
2. Letter from current or former employer showing at least 10 years of experience
3. License to practice the profession
4. Proof that the person has commanded a salary or remuneration demonstrating exceptional ability
5. Membership in a professional association
6. Recognition for achievements and significant contributions to the industry by peers, governmental entities, professional, or business organizations.
7. Comparable Evidence may be submitted if the above are not available. Expert opinion letters can be a substitute.

Generally, EB-2 applicants must have a job offer and labor certification. However, both can be waived by the “National Interest Waiver” provision.

MEDICAL DOCTORS AS EB-2

Generally, International Medical Graduates are not permitted to enter the United States to perform medical services. However, there are some exceptions. These are:

1. The Doctor who has passed steps 1 and 2 of the U.S. Medical Licensing Examination (USMLE), administered by the Educational Commission on Foreign Medical Graduates (ECFMG), is competent in oral and written English (TOEFL) and the Clinical Skills Assessment (CSA) examination.
2. The Doctor is of national or international renown
3. The Doctor is a graduate of an accredited medical school in the U.S. (including Puerto Rico and Canada)
4. The Doctor is not entering the U.S. to perform medical service (e.g., as a professor or researcher, immediate relative of U.S. citizen, refugee or asylee, DV lottery program)

REGISTERED NURSES AND EB-2

Registered nurses who seek EB-2 instead of EB-3 may have a problem in showing that the job they will be doing requires an advanced degree.

NATIONAL INTEREST WAIVER

For a foreign national with an advanced degree (above a Bachelor’s degree) or with exceptional abilities to obtain permanent residence in the United States, an employer will have to petition for them and go through a lengthy process known as Program Electronic Review Management (PERM), to obtain a Labor Certification. Only after the Labor Certification has been obtained can the employer petition USCIS on behalf of the foreign national for an immigrant visa

The PERM or Labor Certification process requires any U. S. employer who intends to petition for and hire a foreign national to demonstrate there is a shortage of qualified U.S. workers in the particular profession in which the alien will be hired. Clearly, this is quite a heavy burden for any employer to carry. It is also evident that the goal of the Labor Certification process is to protect U.S. workers.

However, U.S. immigration law provides an exception to the lengthy and cumbersome PERM. This is generally referred to as the “national interest waiver” provision. Under this provision, an employer’s requirement and job offer labor certification process can be waived. This will be done if it is determined that it is in the national interest of the United States to do so. The national interest waiver is available to foreign nationals with advanced degrees and/or exceptional abilities, whose endeavors are beneficial to the national interest of the United States.

The term national interest is not clearly defined by statute and remains fluid, nebulous, and contentious. Therefore, careful documentation and articulation are required to convince USCIS.

Many precedent decisions afford guidance as to when a “national interest waiver” is warranted. Most notable amongst these is Matter of Dhanasar, 26 I & N Dec. 884 (A.A.) (2016). According to this case which USCIS has heavily relied on, a national interest waiver should be granted if four requirements are met. These requirements are

• That the foreign national’s proposed endeavor has both “substantial merit” and “national importance.”
• That they are well-positioned to advance the proposed endeavor
• That on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements; finally,
• That the foreign national “otherwise merits a favorable exercise of discretion.”

NATIONAL INTEREST WAIVERS FOR FOREIGN MEDICAL DOCTORS

Generally, if the physician’s employment is based on an employment offer as a physician, the employer must also go through the PERM Labor Certification process. However, physicians working in “underserved areas” qualify for national interest waivers (waiver of the normal labor certification process). Even physicians with a J-1 visa and the 2-year foreign residency requirement can benefit from this provision. To secure this national interest waiver:

• The physician must agree to work full-time in a health shortage area or for the V.A.
• A federal agency or state public health department must have determined that the work is in the public interest
• The physician must work full time for five years in authorized status (not including J-1) before they are eligible for adjustment of status or immigrant visa
• Advantages of Using the “National Interest Waiver” route to Obtain Permanent Resident Status (Green Card)

There are many advantages of seeking and obtaining permanent resident status through the national interest waive compared to the regular labor certification process and even other immigration routes.

1. No Employer or Job Offer Required. It is quicker since the lengthy labor certification process is avoided. The labor certification process may take between 3 to 5 years. A national interest waiver petition may be completed in 1 to 2 years.
2. The cost of seeking labor certification, including the cost of advertising the position, would generally be more than that of a national interest waiver visa petition.
3. The foreign national has more flexibility with the national interest waiver petition. He or she may obtain work authorization, work with any employer while his/her petition is pending, and can obtain a travel document during the process.
4. If in the U.S., the foreign national may file an EB-1 extraordinary ability petition and an EB-2 national interest waiver petition at the same time if they qualify for both.
5. The foreign national may also apply for permanent resident status for himself and his family members when filing the National Interest Waiver petition.

HOW WE CAN ASSIST YOU

Over the years, we have assisted many foreign nationals, including doctors and nurses, in obtaining their employment-based immigrant visas through the PERM Labor Certification process and the “National Interest Waiver.” We guide our individual and business clients in navigating the complex requirements of these processes.

You will not be alone because we walk with our clients from the beginning to the end of the process.

C. THIRD PREFERENCE CATEGORY- EB-3

Professionals, Skilled and Unskilled Workers

• Professionals with a bachelor’s degree or combined education, experience, or training equivalent to a bachelor’s degree.
• Skilled Workers are workers who are capable of performing skilled labor. Skilled labor is considered to be any labor that requires at least 2 years of training or experience to perform.
• Unskilled workers are workers performing unskilled labor. Unskilled labor is any labor requiring less than two years of training for entry.

D. FOURTH PREFERENCE (EB-4): SPECIAL IMMIGRANTS

As far back as 1965, U.S. immigration laws were amended to include a category of visas for “special immigrants.” These are immigrants that Congress has determined, from time to time, should be granted permanent resident status for various reasons. Presently these include the following:

• Returning Residents
• Persons Reacquiring U.S. Citizenship
• Religious Workers
• Employees of U.S. Government, or American Institute in Taiwan, for 15 years
• Panama Canal Treaty Employees and their Spouses and Children
• International Medical Graduates (IMGs) who entered the U.S before 1978 and have continued to practice since then
• Retired G-4 officers and their spouses and unmarried children
• Special Immigrant Juveniles (SIJ) are available in the U.S. for youths who require family law protection. This requires state law adjudication and a federal USCIS recognition of the state’s determination.
  U.S. Service members who honorably served on active duty for 12 years
• Victims of September 11, 2001, terrorist attack
• NATO civilian employees
• Broadcasters entering the United States to work for the International
• Broadcasting Bureau of the Broadcasting Board of Governors (BBG)
• Iraqis providing faithful and valuable service to the United States.

LABOR CERTIFICATION

With certain exceptions, aliens intending to obtain permanent residence in the United States through employment must have a job offer that the United States Secretary of Labor has certified will neither displace qualified American workers nor adversely affect wages and working conditions. This certification is obtained by the prospective employer who files an Application for Permanent Employment Certification (previously Application for Alien Employment Certification).

In 2005, the Program Electronic Review Management (PERM) system replaced the former lengthy and cumbersome process for seeking and obtaining labor certification for foreign nationals intending to live and work permanently in the United States. Although more streamlined, efficient, and faster, the PERM process needs meticulous preparations. The steps for obtaining Alien Labor Certification are as follows:

Step 1: Labor Certification – The employer is required to conduct a labor market test to prove that there are no minimally qualified, willing, able U.S. workers to perform the position on a long-term, “permanent” basis. The recruitment protocol must follow the guidelines set forth by the U.S. Department of Labor (DOL). After conducting successful recruitment, the employer then files an online Labor Certification Application with the DOL. The DOL can approve the application, audit it, or deny it.

The Labor Certification process involves several sequential tasks to be completed by the attorney, the employer, and the employee. The following briefly describes each task:

1.Consultation
This is the most critical task because it involves building the foundation for the case. The Labor Certification application requires the employer to state, in very specific terms, the job description and minimum requirements. The employee is also required to prove that they have met the minimum requirements for the position at the time they began the employment.
2.Pre-Recruitment
This involves finalizing the job description and minimum requirements. A required prevailing wage determination request must be filed with the DOL (State Work Agency). The employer is required to either set up an online “PERM” account with the DOL and/or include the office of their attorney as an authorized representative. Then, the employee either obtains and provides supporting statements regarding their skill, experience or commits to providing this documentation at a later date.
3.Recruitment
The employer must identify the specific forms of recruitment it will undertake for the application. Generally, the recruitment period lasts for about 65 to 70 days. The sponsored employee must not participate in any of the recruitment activities.
An employer is expected to conduct recruitment for a period of between 30 days to 180 days before filing the application. This is done by:

1. Placing a 30-day Job Order with the State Workforce Agency (SWA) serving the area of intended employment in which the labor certification is sought.
2. Placing 2 Sunday advertisements in newspapers of general circulation appropriate to the occupation.
3. For a professional position (any position requiring a college or higher degree), 3 additional recruitment procedures are to be used. These can be any 3 of the following:

• job fair
• employer website
• job search website
• employer referral program
• local or ethnic newspaper
• on-campus recruiting
• trade or professional organization
• private employment firm
• campus placement office
• radio / or TV ads

d.Internal Posting Requirement. The employer must give notice of the planned filing of the application to the employee’s bargaining representative in the area of intended employment if there is such a representative. If there is none, employers are required to post a notice about the job opportunity for 10 consecutive business days in a conspicuous place at the prospective worksite.
e.Collection of all the above recruitment materials along with results of the recruitment and prepare a Recruitment Report
f.Complete and file the Application for Permanent Employment Certification (Form ETA 9089) online or by mail (electronic submission is preferred, and the response is faster).
The certification of the application by the DOL in and of itself does not give the alien permanent resident status (a Green Card”). The employer must thereafter submit two applications with the United States Citizenship and Immigration Services (USCIS). These are the Immigrant Visa Petition for Alien Worker (Form I-140) and the Application to Adjust or Register Permanent Residence (Form I-485). These are not part of the Department of Labor Process. These can also be filed concurrently with an employment authorization document (EAD) request. Generally, after the employer has satisfied the Labor Certification requirements, the ultimate approval of the I-140 and I-485 petitions should not be a problem.

Step 2: Immigrant Visa Petition – If the Application for Alien Labor Certification is approved, the employer can file an immigrant visa petition (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS) and includes the approved Labor Certification and Evidence that the sponsored person meets the minimum requirements for the sponsored position. If the “priority date” is current, the Form I-140 petition can be filed concurrently with an application to Register Permanent Residence or Adjust Status (Form I-485) as well as an Application for Employment Authorization (Form I-765)

The immigrant visa petition is typically a straightforward process. The basic contents of this application with the USCIS are an I-140 petition form, the signed, original Labor Certification, and supporting documents, to include documentation of the employee’s credentials. The petition currently requires a $580 filing fee. It typically takes about 5 to 7 months for the USCIS to process the petition. The government can request additional Evidence before making a decision on the petition, but if the foundation of the case is solid, the risk of such requests is typically minimal.

Step 3: Application for Permanent Residence – The third and final step is the individual’s application to register permanent residence or adjust status with the USCIS. In many cases, sponsored workers face a significant wait in line to apply for and receive a grant of permanent residence status. Three key factors determine how long one must wait.

• The first factor is the date the Labor Certification is filed, which is referred to as the “Priority Date.”
• The second factor is the “visa preference category,” which is determined by the position’s minimum degree and experience requirements. Generally, if the sponsored position requires the minimum of a Master’s degree, then it qualifies for “Employment-based 2nd Preference” treatment, or “EB-2;” if the position requires less than a Master’s degree, then it qualifies for “Employment-based 3rd Preference” treatment, or “EB-3.”
• The third key factor is the employee’s country of birth/citizenship. For citizens of India or China, there is currently an overall backlog for both EB-2 and EB-3 categories. Additionally, there is a substantial difference in wait times between these two categories.

The actual application for permanent resident or “green card” status consists of the individual’s application on form I-485, submitted with personal information and documentation, along with the results of a physical exam. The actual processing time required for an I-485 application varies and is currently about 6-12 months. The application currently requires a filing fee of $1,070 per person.

To be able to file the I-485 application, the applicant’s “Priority Date” must be “current.” In simple terms, an applicant’s Labor Certification Application must have been filed before a date determined on a month-to-month basis by the U.S. Department of State.

The month-to-month Priority Dates also impact the processing of the I-485 application for permanent status. Once the USCIS completes processing of the application, it must again check the Priority Date chart. In some cases, the applicant’s place in line may permit an application, but during the case processing, the Priority Date may retrogress and move backward. In those instances, the applicant and USCIS must wait until the dates advance adequately before approving the application and issuing permanent resident status. Once a person is granted permanent resident status, that person can live and work in the U.S. indefinitely.

In some cases, the first two steps of the case, Labor Certification and Immigrant Visa application (I-140) processing may be completed, but the employee may be forced to wait years before they can apply for the I-485. In cases like this, we can track the person’s information and continually monitor the U.S. Department of State’s monthly bulletins. Once it appears that a person may be getting close to eligibility to apply, we can begin work on the I-485 application.