The process for obtaining permanent residence based on employment usually involves three phases: (a) the employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL); (b) the employer then petitions the immigration service on behalf of the foreign national for immigrant classification under the employment-based second or third preference on form I-140; and, (c) the foreign national applies to the immigration service for Lawful Permanent Resident status or the “green card” through adjustment of status in the U.S. or consular processing overseas. Depending on the employment-based preference category through which the individual immigrates, a labor certification may or may not be required. The employment based preference category is detained by the education and experience required for the position and beneficiary’s qualifications.
Please select an employment-based category to find out more information.
a. Workers of Extraordinary or Exceptional Ability; Multinational Managers and Executives; and Outstanding Professors and Researchers (EB-1)
b. National Interest Waivers, including physicians; Workers with Advanced Degrees (Labor Certification); and Workers of Exceptional Ability in the Sciences, Arts or Business (EB-2)
c. Skilled Workers & Professionals ( Labor Certification); Schedule A Labor Certification for Nurses and Physical Therapists (EB-3)
d. Religious Workers (EB-4)
e. Investors (EB-5)
Once the initial step has been taken in the chosen category, whether the filing of a labor certification or immigration petition (Form I-140), the individual will be given a priority date. If filing a labor certification, the priority date is the date on which the application for labor certification is filed with the Department of Labor. If the individual is not required to file a labor certification, as is the case in certain employment-based categories, the priority date is established on the date the immigrant petition (Form I-140) is filed.
Once a priority date is established, the foreign national must wait for his/her priority date to become “current” before submitting an application for permanent residence or adjustment of status (Form I-485). As the number of foreign nationals that desire to become permanent residents surpasses the number annually allowed to become permanent residents, backlogs are common in certain categories. If there is a backlog, the foreign national must wait for the dates to move in his/her favor until his/her priority date becomes “current.”If there is no backlog, then the category is “current” and all foreign nationals in that category with an approved immigrant petition may apply for permanent residence. It is important to note that the foreign national must maintain their non-immigrant status at least until they file for adjustment of status.
ADJUSTMENT OF STATUS
If the individual’s priority date is current and the individual is in the U.S. in lawful status, he or she may apply for adjustment of status by filing an application with the immigration service. The application can remain pending for several months before the immigration service issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” The foreign worker may also apply for employment authorization (EAD) while the adjustment application is pending. In order to maintain employment eligibility the FN must have a valid EAD or an approved non immigrant status.
Adjustment of status is only available to individuals who have always maintained lawful status in the U.S. There were programs allowing people who had violated their status to adjust status if they had filed labor certifications or immigrant petitions prior to April 30, 2001 and paid a penalty of $1,000. There are no such programs now, but persons who have violated status and wish to adjust to LPR should contact an immigration attorney.
Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the U.S. for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the U.S. for 10 years. There are very limited exceptions for overcoming these bars.
Workers of Extraordinary or Exceptional Ability; Multinational Managers and Executives; and Outstanding Professors and Researchers (EB-1)
Individuals who qualify under this category, employment-based first preference, do not require a labor certification. There are three categories under the first preference: (i) Persons of Extraordinary Ability; (ii) Outstanding Professors and Researchers; and (iii) Multinationals Executives or Managers.
Persons of Extraordinary Ability
In order to establish “extraordinary ability in the sciences, arts, education, business, or athletics,” a person must provide extensive documentation of sustained national or international acclaim and recognition of his or her achievements in the field. Extensive documentation is required. No job offer is required.
Evidence to demonstrate “sustained or international acclaim” could be a one-time achievement such as a major international award. If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:
- Receipt of lesser nationally or internationally recognized prizes or awards.
- Membership in an association in the field for which classification is sought requiring outstanding achievement of their members, as judged by recognized national or international experts.
- Published material about the person in professional or major trade publications or other major media.
- Participation as a judge of the work of others.
- Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions of major significance.
- Authorship of scholarly articles in the field.
- Artistic exhibitions or showcases.
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
- High salary or remuneration in relation to others in the field.
- Commercial success in the performing arts.
Outstanding Professors and Researchers
An individual who has at least three years of experience in an academic field may establish that he or she is an outstanding professor/researcher by demonstrating international recognition as outstanding in a specific area of that field.
This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable research position at a university or institute of higher education to conduct research. Careful documentation of this is crucial. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and if the employer has achieved documented accomplishments in an academic field.
Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:
- Receipt of major prizes or awards for outstanding achievements.
- Membership in an association requiring outstanding achievement.
- Published material in professional publications written by others about the applicant’s work.
- Evidence of participation as a judge of the work of others.
- Evidence of original scientific research.
- Authorship of scholarly books or articles in the field.
Multinational Executives and Managers
An individual may be classified as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch, or affiliate of a foreign corporation. The alien must further establish that he or she worked abroad in a managerial or executive capacity for one year prior to road entry into the U.S. in the parent, subsidiary, branch, or affiliate of the U.S. entity.
NATIONAL INTEREST WAIVERS, INCLUDING PHYSICIANS; WORKERS WITH ADVANCED DEGREES (LABOR CERTIFICATION); AND WORKERS OF EXCEPTIONAL ABILITY IN THE SCIENCES, ARTS OR BUSINESS (EB-2)
For individuals in the employment-based second preference, the road to permanent residence commences with either the filing of a national interest waiver or labor certification.
National Interest Waivers (NIW)
The time-consuming labor certification procedure may be avoided if the foreign national can establish that it is in the national interest to waive the “job offer” requirement.The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.
The Administrative Appeals Office of the Immigration and Naturalization Service ( In Re New York State Department of Transportation, Int. Dec. 3363) established, a three-prong test which greatly increasing the difficulty of obtaining such a waiver:
- The person must seek employment in an area of substantial intrinsic merit;
- The person must demonstrate that the proposed benefit will be national in scope; and,
- The person must demonstrate persuasively that the national interest would be adversely affected if a labor certification were required for the beneficiary ( i.e., that the national benefit offered outweighs the inherent national interest in the certification process).
For an NIW, the foreign national does not need an offer of employment. Instead, they may file a self-petition with USCIS. The immigration Service will focus on the impact of the foreign nationals work on their filed. Evidence of the foreign nationals scholarly publications, citations, presentations, awards, memberships in esteemed organizations, participation as the judge of the work of others and published materials about the FN’s work can be used to show impact on the filed.
Workers with Advanced Degrees (Labor Certification)
An individual that can demonstrate that he/she has an advanced degree and a job offer requiring an advanced degree may be eligible for employment-based second preference classification. An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A bachelors and 5 years of progressive experience may be substitute as the equivalent of a master’s.
If an individual falls within this category, the path to permanent residence will only be open after the individual’s employer has successfully navigated the labor certification process. (See Labor Certification). In short, the individual’s employer must obtain “labor certification” from the Department of Labor confirming that there are no U.S. workers able, qualified and willing to perform the work for which the foreign-national is being hired. The labor certification process is onerous and lengthy.
WORKERS OF EXCEPTIONAL ABILITY IN THE SCIENCES, ARTS, OR BUSINESS
An individual without an advanced degree may still obtain employment-based second preference classification, if he/she has exceptional ability in the sciences, arts, or business. The term “exceptional ability” is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business and must be established by providing three of the following:
- An official academic record showing that 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;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
An individual with exceptional ability in the sciences, arts, or business must still go through the labor certification process (See Labor Certification). The labor certification and requirement of a job offer for an individual with exceptional ability in the sciences, arts, or business can be avoided only if it is determined that his/her services are in the national interest.
Skilled Workers & Professionals (Labor Certification); Schedule A Labor Certification for Nurses and Physical Therapists (EB-3)
An individual classified as a skilled worker, professional or other worker falls into the employment-based third preference category. A skilled worker is defined as an individual who is capable of performing skilled labor that requires at least two years training or experience, is not of a temporary or seasonal nature, and for which qualified workers are not available in the U.S. A professional is defined as an individual that that holds, at minimum, a U.S. baccalaureate degree or a foreign equivalent degree and who is a member of the professions. Other workers include workers whose jobs require less than two years training, education or experience. This category requires the sponsoring employer to obtain a labor certification (See Labor Certification).
Schedule A – RELIGIOUS WORKERS (EB-4)
Special immigrant religious workers are placed in the employment-based fourth preference category. In order to obtain classification as a special immigrant religious worker, an individual, at the time of filing the immigrant petition, must meet the following requirements:
- Have been a member for at least the two years immediately preceding the filing of the petition of a religious denomination which has a bona fide nonprofit religious organization in the U.S.
- Must be coming to the U.S. solely for the purpose of carrying on the vocation of a minister of that religious denomination, working for the organization at the organization’s request in a professional capacity in a religious vocation or occupation for the organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code.
- Must have been performing the vocation, professional work, or other work continuously (either abroad or in the U.S.) for at least the two-year period immediately preceding the filing of the petition.
Serving employment immigration needs, the law firm of Berger, Berger & Sobieski is located in Buffalo, NY. To discuss your options, contact us today.