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Permanent Residency (Green Card)


PERM Labor Certification

The most common employment-based method for obtaining Permanent Residency (green card) is through Labor Certification, which is the first of three stages in the green card process.

Labor Certification (Stage 1)
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 US workers.

Labor Certification Requirements

  • Employer sponsorship is required, and
  • Employers are required to carry out a specific recruitment plan including placement of classified ads in:
    • newspapers,
    • internet job boards,
    • in-house postings, and
  • Other actions to attempt to find qualified and available U.S. workers for the intended job.

Labor Certification Preparation
Preparation of the Labor Certification application package is complex and will take more preparation time than the typical nonimmigrant (H or L) petition. When complete, the Labor Certification application is submitted electronically to a national Department of Labor (DOL) processing center. The date of submission of the online form will serve as the priority date for the entire permanent residency process.
The DOL will review the Labor Certification application and may perform an audit of the application and request that specific documentation be submitted. The online system may randomly select cases for audit as well. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications will be returned to attorneys handling the case, and both the employer and the employee will be required to sign the approved application before it can be used in the second stage of the process. The PERM process may typically take anywhere from three to six months to complete (less time if the sponsoring employer has an ongoing recruitment program in place for the position in question).

I-140 Immigrant Petition (Stage 2)

Once the labor certification application is certified, it provides the basis for the sponsoring employer 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 determines whether the foreign national meets the job requirements specified in the PERM Labor Certification. Processing times vary over time and also depend on other variables such as the Service Center jurisdiction.

I-485 Application for Adjustment of Status to Permanent Residency (Stage 3)
The I-140 petition provides the basis for the employees’ I-485 application for adjustment of status (AOS) to permanent residency. Employees, along with their dependents, can file their I-485 application with the I-140 or after the I-140 is filed; as long as their priority dates are 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 US Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/bulletin/bulletin_1360.html

Along with the AOS application, applications for Travel Permission (Advance Parole) and Employment Authorization may also be filed for the employee and dependents:

Advanced Parole
Once the Advance Parole application is approved, the employee and dependents will be able to travel outside the United States even if they do not have valid nonimmigrant status.

Employment Authorization

Once the Employment Authorization Document (EAD) is approved, the employee's dependents will be authorized to work in the United States.
With the approval of the AOS application, the employee and dependents become U.S. Permanent Residents. Due to the many variables that can affect timelines, it is difficult to generalize or predict the time required to complete the green card process. For planning purposes, a range of one to three years is common, but longer time frames apply in categories where the visa backlog is severe, e.g., second and third preference categories for individuals from India or China. 


Multinational MANAGERS and Executives

Managers or executives of multinational companies are eligible for permanent residence. The E13 Multinational Manager 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 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, then apply for their green cards in the E13 Multinational Manager category.
Two types of managers are recognized by the USCIS: those who directly manage people and those who manage an essential function. Managers who manage people have direct reports who are professional grade employees - their direct reports are either degreed professionals or are managers themselves. Managers of an essential function must be at a senior level with respect to the function managed, must have substantial discretionary, day-to-day authority over the function managed, and must be primarily engaged in fulfilling management duties.  Managers must demonstrate their management level qualifications for their positions in the United States and with the qualifying organization abroad.  Project Managers who do not have direct reports may qualify in this category by meeting the criteria for managing an essential function. 


Extraordinary Ability Visas

To apply for Permanent Residency (Green Card) under Extraordinary Ability category, individuals must file an immigrant visa petition (Form I-140) with the USCIS along with evidence of their Extraordinary Ability.

Extraordinary Ability

Extraordinary Ability is defined as a level of expertise indicating that an individual is one of that small percentage who have risen to the very top of his or her field of endeavor.

Proof of Extraordinary Ability

The petition must be accompanied by evidence of national or international acclaim and that individuals’ achievements have been recognized in their field of expertise.
Evidence of a one-time achievement can prove Extraordinary Ability. If candidates have received a major international award like the Nobel Prize, the A. M. Turing Award, an Academy Award or any prize at this level, it should be sufficient evidence. If such a prestigious award has not been received, at least three (3) other types of evidence described below must be submitted.
If candidates cannot provide such supporting documentation because those forms of evidence do not readily apply to their occupation, they may submit comparable evidence to establish eligibility in certain circumstances. Please contact our office for more information.

Extraordinary Ability Visa Requirements

  • Labor Certification is not required for this category. This is a petition for the first preference employment-based category and all such petitions are exempted from Labor Certification.
  • Offer of employment (sponsorship) is not required, but candidates must provide clear evidence that they are coming to the United States to continue work in their area of expertise, such as prearranged employment or contractual commitments. In their absence, a statement detailing how the candidates intend to continue their work in the United States may be accepted.
  • The candidate’s Extraordinary Ability is limited to the following fields:
    • Sciences,
    • Arts,
    • Education,
    • Business, or
    • Athletics.

If a prestigious award such as the Nobel Prize, the A. M. Turing Award, or an Academy Award has not been received, at least three (3) other types of Extraordinary Ability evidence must be submitted from the following list:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor,
  • Membership in association of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields,
  • Published material in professional or major trade publications or major media about the alien and relating to the alien's work in the field of endeavor,
  • Evidence of participation, on a panel or individually, as a judge of the work of others in the same or an allied field of specialization,
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor,
  • Authorship of scholarly articles in the field, in professional journals or other major media,
  • Display of the alien's work in the field at artistic exhibitions or showcases in more than one country,
  • Performance in a lead, starring, or critical role for organizations or establishments with distinguished reputations,
  • Receiving a high salary or other significantly high remuneration for services in relation to others,
  • Commercial successes in the performing arts, as shown by the box office receipts or record, cassette, compact disc, or video sales.

Outstanding Researcher Visas

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. In addition, 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. In order 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 US employer. In addition, a permanent job offer is required. For purposes of this category, the USCIS defines permanent position as a 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.

Outstanding Professor or Researcher Qualifications
Internationally Recognized researchers may qualify for Permanent Residency (green card) in this category. At a minimum, they must meet two of the following six criteria in order to qualify:

  • Receipt of major prizes or awards for outstanding achievement in the academic field,
  • Membership in associations in the academic field, which require outstanding achievements of their members ,
  • Published material in professional publications written by others about your work in the academic field,
  • Participation on a panel, or individually, as the judge of the work of others in the same or an allied academic field,
  • Original scientific or scholarly research contributions to the academic field, and
  • Authorship of scholarly books or articles, in scholarly journals with international circulation in the academic field.

Evidence Evaluation
The strength of evidence provided by candidates will be evaluated. Factors such as the acclaim of the journals in which one has been published, the credentials of those providing testimony and the criteria for selection as a judge or for the award of prizes, among others, are taken into account in the evaluation of the overall impression that an individual qualifies.
The Immigration Service gives ample weight to evidence such as:

  • Peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals,
  • testimony from other leading scholars,
  • A number of entries in a citation index which cite a prospective beneficiary's work as authoritative in the field, and
  • Participation by the candidate as a reviewer for a peer-reviewed scholarly journal.

However, the Immigration Service has stated that a book published by a "vanity press," footnoted references of unevaluated works, unevaluated listings in a subject matter index, or negative or neutral reviews have little or no value.

Outstanding Researcher Visa Requirements

  • Labor Certification is not required for this category. This is a petition for the first preference employment-based category and all such petitions are exempted from Labor Certification.
  • An offer of employment (sponsorship) is required from a university or other institution of higher education or from a private employer with at least 3 full-time researchers.
  • The candidates must have at least three years of experience in teaching and/or research in the academic field.
    • Individuals’ experience as a teaching assistant will not count. They must have full responsibility for the class for the time to count towards the three year total.

The research experience prior to finishing university and the research done during that time may be used, but individuals must have since received their degree and their research must have been outstanding.
If an individual has two years of experience as a professor and one year of research experience which adds up to the required three years, the experience is interchangeable. In the same vein, if his or her professorial experience totals three years, he or she can use it to qualify for a research position and vice versa.

University or Other Institution of Higher Education Sponsorships

If a university or other institution of higher education will employ the visa candidate, he or she must be offered a tenured or tenure-track position as a teacher or in a permanent position as a researcher in his or her academic field.

Private Employer Sponsorships

If a private employer will employ the visa candidate, he or she must be offered a permanent research position in his or her academic field. In addition, the sponsoring employer must employ at least three full-time researchers and must have achieved documented accomplishments in the field.


National Interest Waivers

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.  In essence, the applicant requests that the normal labor certification requirement be “waived” based on the fact that the applicant’s work will benefit a national interest of the United States.  Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered.  No job offer is required for the national interest waiver category.

The 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 underqualified 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, and it is possible to establish one's admission as being in the national interest in other ways, including in the development of critical technologies.

The Administrative Appeals Office (AAO) issued a precedent decision that defines the tests applied in this category more clearly. To immigrate under this category, one must submit evidence showing that 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. 

The third test is typically met by submitting evidence that the applicant is: 

  • working in a key or critical role on a project that is in the national interest; or
  • working in a field that is inherently in the national interest AND possesses qualifications and experience that are superior to available US workers

Supporting testimonial letters from experts in the field are normally needed to establish and reinforce how the applicant’s work serves the national interest and how it compares with others in the field.

 

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