The two principal avenues by which people abroad immigrate to the U.S. is through the employment-based (EB-1, EB-2, and EB-3) and the family-based categories. The employment-based category is divided into several subcategories.
The EB-1 category is composed of three sub-groups:
- Persons of Extraordinary Ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. A specific job offer is not required (an individual can file their own petition with the USCIS, rather than go through an employer) so long as the applicant will continue to work in the U.S. in the field in which they have extraordinary ability.
- Outstanding Professors and Researchers with at least three years experience in teaching or research, and international recognition. Labor certification (also referred to as PERM) is not required, but the prospective employer must provide a job offer and sign the immigrant petition.
- Multinational Executives and Managers are the third sub-group of the EB-1 category. Qualified persons must have been employed for at least one of three preceding years in an executive or managerial capacity by a U.S. parent, subsidiary, branch, or affiliate of a foreign corporation. Labor certification is not required, but the prospective employer must provide a job offer and file a petition with the USCIS.
Persons falling into the EB-2 category must have a labor certification (commonly known as PERM) approved by the Department of Labor. A job offer is required, and the prospective U.S. employer must file a petition on behalf of the applicant. An application may be made for an exemption of the job offer and labor certification requirements if it would be in the “national interest.” Click here for National Interest Waiver. There are two subgroups within the EB-2 category:
Professionals holding an advanced degree (beyond a baccalaureate), or a baccalaureate degree and at least five years progressive experience in the profession.
Persons with exceptional ability in the arts, sciences, or business significantly above that ordinarily encountered within the field.
EB-3 category applicants must be sponsored by their prospective employer in all circumstances. There are three subgroups:
Professionals with a baccalaureate degree.
Skilled workers, i.e., those capable of performing work requiring at least two years experience or training.
Unskilled workers, i.e., those persons capable of filling positions requiring less than two years training or experience.
I-140 Immigrant Petition and I-485 Adjustment Of Status
Once the PERM application has been certified by the Department of Labor, an Immigrant Petition (Form I-140) is filed with the USCIS within 180 days of PERM certification. The I-140 petition asks the USCIS for employment-based classification in one of the three employment-based categories (EB-1 through EB-3). As the green card process is for full-time, permanent employment in the future, obtaining I-140 approval does not change the candidate’s nonimmigrant status. In other words, if the sponsoring employer is not currently employing the sponsored employee (in most cases H1B or L1 visa status), in order to continue to remain legally in the U.S., the applicant must still continue to maintain valid non-immigrant visa status after I-140 approval as well, at least until adjustment of status application (see below) can be filed.
Let us summarize situations where a Labor Certification is not required to be filed alongside the I-140 petition:
When employment in the U.S. is in the “National Interest,” and the foreign national qualifies in EB-2 as a person of exceptional ability in the Sciences, Arts or Business, or as a Professional with an Advanced Degree.
When an individual falls into EB-1 as either a Person of Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics; Outstanding Professor or Researcher; or Managerial or Executive Transferee.
For I-140 petitions that require job offers, the sponsoring employer signs the I-140 petition with evidence displaying that it has the ability to pay the proffered wage. The employer can submit copies of annual reports, federal tax returns, or audited financial statements. Alternatively, if the employer employs 100 or more workers, a statement from a financial officer of the organization which establishes the ability to pay the wage may be submitted. Alternate evidence such as profit/loss statements, bank account records, or personnel records may be submitted as well. In many cases a net loss by the employer can be offset by assets exceeding liabilities. In our experience, if the net profit is at least equivalent to the offered salary, the I-140 should be routinely approved by the USCIS. Moreover, if the sponsored employee is currently employed by the sponsoring employer, and receiving a salary close to that offered in the I-140 petition, then the presumption is that the employer is capable of paying the offered salary in the future as well even if the latest profit figures are considerably less than the offered salary.
Employment experience letters may be required to be submitted as well alongside the employer’s financial documentation. Many I-140 denials by the USCIS occur due to the failure of the sponsored employee to meet the minimum qualifications to properly perform the duties of the proffered job. If the I-140 petition describes the employment as requiring, say, a bachelor’s degree and 2 years of employment experience as a minimum qualification to satisfactorily perform the proffered job, in almost all cases this education and experience must have been gained by the sponsored employee prior to commencing employment with the sponsoring employer. Also note that the USCIS is particular about foreign degree equivalents to U.S. degrees, as any evaluation equating a foreign degree to the U.S. equivalent must be based on foreign education only, and not on a combination of education plus employment experience. Extra care must also be taken in attempting to equate a 3 year foreign degree to the equivalent 4 year U.S. bachelor’s degree as well.
Strategically speaking, it is best for the sponsored employee to exceed the minimum qualifications for the job, which is supposed to be open to all qualified applicants, and not created solely to supply a green card to the sponsored employee. For this very reason the job opening is advertised and a recruitment campaign to fill the job is implemented as a condition of PERM certification by the Department of Labor. If the candidate’s resume too closely matches the qualifications of the offered job, the Department of Labor or the USCIS may conclude that the position is not fairly open to U.S. workers, who did not have the advantage of the incumbent foreign employee to gain qualifying employment experience in the offered job. Furthermore, even if the sponsored employee qualified for the job, the position must require those qualifications. The position of clerk in a convenience store should, for example, should not be classified by the employer as EB2 even if the sponsored employee holds a master’s degree, or bachelor’s degree and 5 years of progressively responsible experience. These requisite qualifications as consideration for hiring, even if the employer has historically filled this position with similarly qualified employees in the past, are not the norm in the industry, and the employer would be unlikely to provide a convincing argument that business necessity (profitability) affords these minimum qualifications.
The last step in the permanent resident (green card) process is the filing of an adjustment of status application I-485 with the USCIS if the candidate is currently in the U.S. Click here to determine if you may be subject to an immigrant visa waiting list prior to filing an adjustment of status application. The applicant needs to seek travel permission (“advance parole“) if he or she needs to travel while the adjustment of status application is pending with the USCIS. The foreign worker also has the right to receive employment authorization, allowing him or her to commence employment while his or her adjustment of status application is being processed. Employment Authorization Document (EAD) allows for employment independent of current nonimmigrant status allowing for employment, such as H1B or L1 visa categories, which are employer specific, i.e., employment is authorized only by an employer filing the appropriate petition. The adjustment of status application can be filed concurrently with the I-140 petition (assuming that the priority date is current, of course), or it can be filed when the priority date becomes current.
Foreign nationals based overseas can process their immigrant visas at consular posts (“Visa Processing”) in their home countries. Click here to determine if you may be subject to an immigrant visa waiting list prior to Visa Processing. Individuals who violated their status in any way (violations for up to 180 days may be excused in employer sponsorship cases) and are not eligible for adjustment of status must return to their home country for consular processing.
There may be advantages in utilizing the Adjustment of Status procedure rather than Visa Processing. One is the savings in cost and inconvenience of the long trip back to their home country. In addition, the foreign national will have the right to appeal a denial of the adjustment of status application through the U.S. court system, a right that is not available to him or her through Visa Processing.
Contact Our Firm
Very few candidates are eligible for self-petitioning in the EB-1 category, or the EB-2 with National Interest Waiver, whereas a PERM application can be filed for any candidate with the support of his or her employer. Please contact our firm to discuss eligibility.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
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