A person lawfully admitted for permanent residence may remain in the United States indefinitely and enjoys many of the rights of a U.S. citizen, including authorization to engage in employment in virtually any occupation. Lawful permanent residence can be achieved in a limited number of ways. Dunbar Harder provides expertise in evaluating the goals of the companies and individuals to identify the best options and ultimately obtaining lawful permanent residence.

An alien with extraordinary ability in the sciences, arts, education, business, or athletics may file qualify for an employment based first preference immigrant visa. The alien must be seeking to immigrate to the United States to perform services in his area of extraordinary ability.

Extraordinary Ability

An alien of extraordinary ability possesses 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.

The alien must have sustained national or international acclaim and recognition for his achievements in his field of expertise. Evidence of such recognition may include either receipt of a major, internationally recognized award, such as a Nobel Prize, or at least three other forms of documentation tending to establish the alien’s acclaim and recognition. Such documents may include receipt of nationally or internationally recognized prizes for excellence, membership in associations that require outstanding achievements of members, published material about the alien’s work, the alien’s participation on a panel, individually or as a judge, of the work of others, evidence of the alien’s original scientific, scholarly or business-related contributions of a major significance in the field, the alien’s authorship of scholarly articles, evidence that the alien has been employed in a critical or essential capacity or has commanded a high salary. If these criteria do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Procedures

An alien with extraordinary ability in the sciences, arts, education, business, or athletics may file an immigrant visa petition with U.S. Citizenship and Immigration Service (USCIS) on his own behalf. Aliens of extraordinary ability are exempt from the labor certification requirement.

Certain multinational executives and managers may qualify for an employment based first preference immigrant visa. To qualify as a multinational manager or executive the alien must be transferring from an employer abroad to the same or a related employer in the United States. The alien must have worked in a position that is managerial or executive for at least one year out of the last three prior to applying for the classification or entering the United States. The alien also must perform executive or managerial level duties in the United States.

Qualifying Entities

The employer in the United States must be the same employer or a subsidiary or affiliate of the employer abroad.

A subsidiary is a firm that a parent owns, directly or indirectly, and over which the parent exercises managerial control. Generally, majority ownership is found to demonstrate managerial control. However, where a parent owns only 50% or less of an entity, control must be demonstrated.

An affiliate is one of two subsidiaries, both of which are owned and controlled by the same parent or individual. Alternatively, where the same group of individuals owns a legal entity abroad and a separate legal entity in the United States in approximately the same proportions, the companies may be affiliates for immigration purposes.

Qualifying Employment

To qualify as a multinational manager or executive, the alien must have been employed abroad as a manager or executive. He must also be coming to the United States to work as a manager or executive.

A manager is an individual who is primarily responsible for the management of the organization or a specific subdivision or function within the organization. He must supervise and control the work of other supervisory, professional or managerial employees. Managerial duties include the authority to hire and fire or to recommend similar personnel actions and exercise discretion over the daily operations of the activity or function for which he has responsibility. Where no employees are supervised, the individual may still qualify as a manager if he functions at a senior level with respect to the function managed.

An executive directs the management of the organization or a major component or function of it. He must be responsible for the establishment of goals and policies, exercise wide latitude in discretionary decision-making, and receive only general supervision from higher level executives, the Board of Directors or the stockholders of the company.

Procedure

Multinational managers and executives are exempt from the labor certification requirement. However, an alien seeking classification in this category must be the beneficiary of an immigrant visa petition filed on their behalf by their employer.

To request multinational manager or executive classification on behalf of an employee, the petitioning employer must file an immigrant worker petition with U.S. Citizenship and Immigration Services (USCIS).

The petitioner must demonstrate the qualifying relationship between the alien’s employer abroad and the alien’s employer in the United States. In addition, the petitioner must demonstrate that the alien has the required qualifying experience and that the position in the United States is a managerial or executive position.

Finally, the petitioner must demonstrate that it has the ability to pay the employee the wage offered. The petitioner may demonstrate this in a number of ways. The petitioner may demonstrate net income or net current assets in excess of the wage offered to the alien. Alternatively, the petitioner may demonstrate that the petitioner is currently paying the employee the required wage. The petitioner’s ability to pay the offered wage must be demonstrated from the time of the filing of the petition.

As a general rule, in order to qualify for an immigrant visa based on an offer of employment, an alien normally must have an offer of employment from an employer willing to file an immigrant visa petition on his or her behalf. In addition, the petition must usually be supported by a certification from the U.S. Department of Labor (DOL) demonstrating that qualified U.S. workers are either unavailable or unwilling to accept the job offered.

Both the requirements of a job offer and DOL labor certification may be waived for alien workers with an advanced degree and exceptional ability in his or her field. In order to qualify for the waiver of these requirements, the alien must be able to demonstrate that his or her work will benefit the U.S. national interest. The concept of “national interest” covers a wide range of endeavors, including health, science, security, economic and commercial interests. The criteria for establishing eligibility for a national interest waiver, however, are based on administrative case law, and are inherently subjective in nature.

National Interest Waiver Criteria

To establish that the alien’s work will benefit the U.S. national interest, the alien must establish, at a minimum three threshold criteria. First, the alien must establish that he is seeking employment in an area of substantial intrinsic merit. Second, the alien must demonstrate that the benefit will be national in scope. Finally, the alien must show that the U.S. national interest will be adversely affected if a labor certification is required.

Procedures

To request a national interest waiver, the alien must file a request for the waiver with USCIS concurrently with an immigrant visa petition.

The Immigration and Nationality Act prohibits the admission of an alien immigrant coming to perform skilled or unskilled labor unless the U.S. Department of Labor (DOL) has certified that there are insufficient numbers of qualified U.S. workers available and the alien’s employment will not adversely affect the wages and working conditions of U.S. workers.

The procedure for proving that there are no U.S. workers who are qualified, willing and available to perform the job duties is called the “labor certification” process. An individual labor certification is valid for the specific employer, position and geographic location identified in the application filed with the DOL. To immigrate based on the labor certification, an individual must intend to work in the certified position for a reasonable period after becoming a permanent resident without a predetermined termination date.

The DOL requires employers to define objective, measurable “minimum requirements” of education, training and experience needed to perform the job to be filled by the alien. These requirements should be normal to the occupation. In addition, except under limited circumstances, the alien must have the education, experience and training required for the position prior to the date he began work with the employer.

Prevailing Wage Determination

The employer must attest that it will pay the alien at least the prevailing wage. The prevailing wage is the wage paid to similarly employed individuals with similar qualifications in the area of intended employment. The employer must obtain a prevailing wage determination from the DOL. Generally, prevailing wage determinations are based on wage data compiled and published by the DOL. However, it may be possible to submit a wage survey to the DOL for consideration.

Recruitment

To demonstrate that there are no minimally qualified, able and willing U.S. workers available to work in the position offered to the alien, the employer must complete specific recruitment activities to test the U.S. labor market. DOL requires employers to complete several specific defined recruitment activities. DOL requirements dictate the media, timing and scope of recruitment activities. Generally, the employer is required to post a notice with the state workforce commission, post a notice of the job opportunity on its premises and place two Sunday advertisements in the newspaper of general circulation in the area of intended employment. In addition, employers must select and complete three additional recruitment actions from a list of alternate recruitment actions. Alternate recruitment actions and media include job search websites, the employer’s website, professional journals and job fairs among others.

All recruitment activities and the results of recruitment must be documented according to DOL standards. The employer is required to maintain documentation of the recruitment for a period of five years. The employer may be required to submit these documents to the DOL at any time during the five year retention period.

The employer may also be required to interview job applicants to determine whether they are qualified for the position. At the end of the recruitment process the employer must prepare a recruitment report indicating the reasons for rejecting any U.S. worker applicants.

After all recruitment is completed, the employer must wait 30 days prior to filing the request for labor certification with the DOL. The recruitment process, including the 30 day waiting period, must be completed in 180 days. The recruitment process, including the 30 day waiting period, may take as little as 60 days to complete.

Procedures

Upon completion of the recruitment the employer may electronically submit the request for labor certification with the DOL.

Generally, it is not necessary to submit documentation to DOL with the request for labor certification. However, if the submitted request for labor certification is audited, the employer will be required to submit evidence of the recruitment conducted and the results of the recruitment.

On certification by the DOL, the labor certification is valid for a period of 180 days. To utilize the approved labor certification to petition for the alien, the employer must file an employment based immigrant worker petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the employee prior to the expiration of the labor certification.

Exceptions to the Labor Certification requirement

Certain priority workers, may gain resident alien status without the need to obtain such certification from the DOL. Priority workers include individuals with extraordinary ability in their field, certain outstanding professors and researchers, and multinational executives and managers.

In addition, the labor certification requirement may be waived for aliens with advanced degrees or of exceptional ability where the alien demonstrates that his work will benefit the U.S. national interest. This concept covers a wide range of endeavors, including health, science, security, economic and commercial interests.

An alien with exceptional ability in the arts, sciences or business may qualify for an employment based second preference immigrant visa.

Exceptional Ability

An alien of exceptional ability in the arts, sciences or business possesses a degree of expertise significantly above that ordinarily encountered in his field. Exceptional ability may be demonstrated by producing at least three types of evidence, including a degree from an institution of higher learning, proof of at least 10 years of experience in the occupation, a license to practice the occupation, proof of commanding of a high salary, membership in professional associations, or proof of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

Procedures

Aliens of exceptional ability must normally have an employer file an immigrant visa petition on their behalf with the U.S. Citizenship and Immigration Service. Normally, the employer’s petition must be supported by a labor certification from the U.S. Department of Labor (DOL) certifying that qualified U.S. workers are either unavailable or unwilling to accept the job offered.

However, both the requirements of a job offer and DOL labor certification may be waived where the alien demonstrates that his work will benefit the U.S. national interest. A national interest waiver may be granted for a wide range of endeavors, including health, science, security, economic and commercial interests. The criteria for establishing eligibility for a national interest waiver, however, are based on administrative case law, and are inherently subjective in nature.

To qualify for a national interest waiver, the immigrant worker petition must provide evidence that the alien will serve the U.S. national interest to a substantially greater degree than others in the field with the same minimum qualifications. In additional, the alien must present evidence demonstrating that his past achievements justify the future national benefit of his work.

Further, if a petitioner is required, the immigrant worker petition must demonstrate that the petitioner has the ability to pay the employee the wage offered. The petitioner may demonstrate this in a number of ways. The petitioner may demonstrate net income or net current assets in excess of the wage offered to the alien. Alternatively, the petitioner may demonstrate that the petitioner is currently paying the employee the required wage. The petitioner’s ability to pay the offered wage must be demonstrated from the time of the filing of the labor certification, if required, or the petition if no labor certification is required.

If an immigrant visa is currently available to the alien under the immigrant visa quota, the alien may file an application to adjust status to U.S. lawful permanent residence concurrently with the immigrant worker petition filed by his employer. If a visa is not available under the immigrant visa quota the alien must wait until a visa number becomes available to file the application to adjust status to U.S. lawful permanent residence. On approval of the application to adjust status to U.S. lawful permanent residence, the alien will become a U.S. lawful permanent resident (“green card” holder).

An alien holding an advanced degree in the professions may qualify for an employment based second preference immigrant visa.

Advanced Degree Professional

An advanced degree professional is one who has attained a master’s degree or higher from a United States university, or holds a foreign equivalent degree. An alien who has a baccalaureate degree, or the equivalent foreign degree, and at least five years of progressive experience in a specialty occupation may also qualify as an advanced degree professional. In addition, the job offered in the United States must require master’s degree or higher or a four year baccalaureate level degree and five years of progressive experience.

Procedures

Advanced degree professionals must normally have an employer file an immigrant visa petition on their behalf with U.S. Citizenship and Immigration Service (USCIS). Normally, the employer’s petition must be supported by a labor certification from the U.S. Department of Labor (DOL) certifying that qualified U.S. workers are either unavailable or unwilling to accept the job offered.

However, both the requirements of a job offer and DOL labor certification may be waived where the alien demonstrates that his work will benefit the U.S. national interest. A national interest waiver may be granted for a wide range of endeavors, including health, science, security, economic and commercial interests. The criteria for establishing eligibility for a national interest waiver, however, are based on administrative case law, and are inherently subjective in nature.

To qualify for a national interest waiver, the immigrant worker petition must provide evidence that the alien will serve the U.S. national interest to a substantially greater degree than others in the field with the same minimum qualifications. In additional, the alien must present evidence demonstrating that his past achievements justify the future national benefit of his work.

The immigrant worker petition must provide evidence of the alien’s education and/or education and work experience. Further, if a petitioner is required, the immigrant worker petition must demonstrate that the petitioner has the ability to pay the employee the wage offered. The petitioner may demonstrate this in a number of ways. The petitioner may demonstrate net income or net current assets in excess of the wage offered to the alien. Alternatively, the petitioner may demonstrate that the petitioner is currently paying the employee the required wage. The petitioner’s ability to pay the offered wage must be demonstrated from the time of the filing of the labor certification, if required, or the petition if no labor certification is required.

If an immigrant visa is currently available to the alien under the immigrant visa quota, the alien may file an application to adjust status to U.S. lawful permanent residence concurrently with the immigrant worker petition filed by his employer. If a visa is not available under the immigrant visa quota the alien must wait until a visa number becomes available to file the application to adjust status to U.S. lawful permanent residence. On approval of the application to adjust status to U.S. lawful permanent residence, the alien will become a U.S. lawful permanent resident (“green card”).

An alien skilled worker may qualify for an employment based third preference immigrant visa.

Skilled Worker

To be classified as a skilled worker, the alien must have at least two years of training or experience. In addition, the job offered in the United States, must require, at a minimum two years of training or experience.

Procedures

A skilled worker must have an employer file an immigrant visa petition on his behalf with U.S. Citizenship and Immigration Service (USCIS). The employer’s petition must be supported by a labor certification from the U.S. Department of Labor (DOL) certifying that qualified U.S. workers are either unavailable or unwilling to accept the job offered.

The petitioner must provide evidence of the alien’s training or experience. In addition, the petitioner must demonstrate that it has the ability to pay the employee the wage offered. The petitioner may demonstrate this in a number of ways. The petitioner may demonstrate net income or net current assets in excess of the wage offered to the alien. Alternatively, the petitioner may demonstrate that the petitioner is currently paying the employee the required wage. The petitioner’s ability to pay the offered wage must be demonstrated from the time of the filing of the labor certification.

If an immigrant visa is currently available to the alien under the immigrant visa quota, the alien may file an application to adjust status to U.S. lawful permanent residence concurrently with the immigrant worker petition filed by his employer. If a visa is not available under the immigrant visa quota the alien must wait until a visa number becomes available to file the application to adjust status to U.S. lawful permanent residence. On approval of the application to adjust status to U.S. lawful permanent residence, the alien will become a U.S. lawful permanent resident (“green card”).

An alien professional may qualify for an employment based third preference immigrant visa.

Professional Worker

The alien must have at least a four-year baccalaureate level degree or the equivalent foreign degree, to be classified as professional workers. In addition, the job offered in the United States must require a four year baccalaureate level degree or the equivalent foreign degree.

Procedures

A professional worker must have an employer file an immigrant visa petition on their behalf with U.S. Citizenship and Immigration Service (USCIS). The employer’s petition must be supported by a labor certification from the U.S. Department of Labor (DOL) certifying that qualified U.S. workers are either unavailable or unwilling to accept the job offered.

The petitioner must provide evidence of the alien’s education and, if required for the position, work experience. In addition, the petitioner must demonstrate that it has the ability to pay the employee the wage offered. The petitioner may demonstrate this in a number of ways. The petitioner may demonstrate net income or net current assets in excess of the wage offered to the alien. Alternatively, the petitioner may demonstrate that the petitioner is currently paying the employee the required wage. The petitioner’s ability to pay the offered wage must be demonstrated from the time of the filing of the labor certification.

If an immigrant visa is currently available to the alien under the immigrant visa quota, the alien may file an application to adjust status to U.S. lawful permanent residence concurrently with the immigrant worker petition filed by his employer. If a visa is not available under the immigrant visa quota the alien must wait until a visa number becomes available to file the application to adjust status to U.S. lawful permanent residence. On approval of the application to adjust status to U.S. lawful permanent residence, the alien will become a U.S. lawful permanent resident (“green card”).

Once an immigrant visa is available under the immigrant visa quota, and concurrently with the filing of or upon approval of the immigrant worker petition, the alien is eligible to complete the immigration process. If the alien is present in the United States at the time the immigrant petition is approved, he may file an application to adjust his status from nonimmigrant to permanent resident status. If the alien is abroad, he may elect to consular process his immigrant visa application. Under consular processing, the alien may file an immigrant visa application with the Department of State (DOS) consular authorities in his country of nativity or last residence.

The adjustment of status process has historically been procedurally preferable. There are still a variety of procedural benefits to using this process. USCIS processing backlogs, however, periodically make immigrant visa application process through a U.S. consulate abroad the preferable option.

Adjustment of Status Procedures

The application to adjust status is filed with U.S. Citizenship and Immigration Service (USCIS). To support the application to adjust status, applicants must provide biographical data and documentation. Such documentation includes copies of long form birth certificates, marriage certificates and divorce certificates. In addition, applicants for adjustment of status to U.S. lawful permanent residence must complete a medical exam. After the application to adjust status is filed, applicants will be scheduled to attend an applicant service center to provide biometrics.

USCIS may exclude certain aliens for criminal, health or political reasons. If the applicant for adjustment of status has ever been arrested, charged or convicted for violation for any laws, in the United States or abroad, he may be ineligible to adjust status to U.S. lawful permanent residence. Generally, offenses involving regulatory laws, such as traffic violations, and offenses for which the term of imprisonment was six months or less do not make an individual excludable from the United States.

Interim Benefits

An alien with an application to adjust status filed on his behalf is eligible to remain in the United States in an authorized period of stay while the application to adjust status is pending. During the interval between the filing of the application to adjust of status and its approval, ancillary benefits are available to allow an alien to work and travel freely. Alternatively, provided that the alien is present in the United States in a nonimmigrant status that permits it, he may continue to renew his nonimmigrant status while the application to adjust status is pending.

At the time the application to adjust status is filed with USCIS, the applicant may concurrently submit an application for employment authorization. Once the application is approved, the applicant will receive an employment authorization document permitting employment in the United States while the application to adjust status is pending. Likewise, at the time the application to adjust status is filed with USCIS, the applicant may concurrently submit an application for an advance parole travel document. Once the application is approved, the applicant will receive an advance parole travel document. The advance parole travel document may be used to reenter the United States after any departure. If the applicant is unable to, or elects not to maintain his nonimmigrant visa status in the United States in order to preserve his pending application to adjust status to U.S. lawful permanent residence, he must apply for an obtain an advance parole travel document prior to departing the United States.

Dependent Family Members

The alien worker’s spouse and children under the age of 21 derive eligibility for resident alien status from him. It is not first necessary for them to file separate immigrant visa petitions with USCIS. They may apply for resident status at the same time as the principal alien by filing individual applications to adjust status to U.S. lawful permanent residence.

Immigrant Visa Quota

A fixed number of immigrant visas are issued each fiscal year. Immigrant visas are divided into three categories, family-sponsored, employment-based and diversity immigrant. Within these categories immigrant visas are further allocated based on country of birth and the applicant’s preference category.

Employment-based visas are allocated under the following preference categories:

First Preference Priority Workers

  • Aliens of Extraordinary Ability
  • Outstanding Professors Researchers
  • Multinational Executives and Managers

Second Preference

  • Members of the Professions Holding Advanced Degrees
  • Aliens of Exceptional Ability

Third Preference

  • Professional Workers
  • Skilled Workers
  • Other Workers

Fourth Preference

  • Special Immigrants

Fifth Preference

  • Employment Creation Immigrants

Depending on the applicant’s country of birth and preference category an immigrant visa may be immediately available, or there may be a wait of a few to several years for an immigrant visa to become available.

An individual’s “priority date” determines his date of eligibility to receive an immigrant visa. The priority date is the date that the labor certification was filed, or if no labor certification was required, the date that the immigrant worker petition was filed. U.S. Department of State issues a monthly visa bulletin that provides up to date immigrant visa availability by preference category and country of birth.

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