Permanent Employment Visas

Permanent Employment Visas Employment Sponsored Immigrants

Labor Certification Immigrants

For most employment-sponsored immigrants, the process of receiving Permanent Employment Visas comprises three phases: the labor certification, the immigrant visa petition, and the application for permanent residence. The labor certification requirement does not apply to people who qualify as Multinational Manager & Executive Immigrants, Religious Worker Immigrants, Outstanding Researchers and Professors, Extraordinary and Exceptional Ability Immigrants, Immigrant Investors, Family Sponsored Immigrants and Amnesty Immigrants.

Labor Certification

A labor certification (Form ETA-9089) is a document issued by the US Department of Labor (DOL) certifying that there is a shortage of qualified, willing and available workers for a full time job that offers prevailing wages and working conditions. The first steps involve finalizing the job description and minimum requirements for the position, and determining the prevailing wage.

As part of the labor certification process, we will need to obtain an official Prevailing Wage Determination. That Prevailing Wage Determination will normally be based on wages listed on the website of the DOL. The labor certification rules do not require payment of the prevailing wage until after permanent residence is approved. However, present payment of prevailing wage may be required as a condition of the employee’s temporary visa (such as H-1B, E-3, etc.)

Permanent Employment Visas

Any job requirement that is not considered a standard industry requirement for the occupation must be documented as a “business necessity” of the employer and will cause a substantial delay in approval. Also, any requirement that the employee did not have on the first day of work with the sponsoring employer in the current position may not be listed as a job requirement. The DOL will make the final decision on the appropriate level of education, experience, and prevailing wage.

For all types of positions, the employer’s recruitment efforts must include two Sunday advertisements in the largest circulation newspaper in the area of employment, a 30-day job order posted at the State unemployment office, and a 10-day internal posting at the employer’s place of business.

In addition, for positions that require a bachelor degree or higher, the employer must conduct at least three of the following ten recruitment steps:

  • Job fair advertising
  • On-campus recruiting
  • Employer website posting
  • Trade or professional organization advertising
  • Job search website posting
  • Private placement firm listing
  • Internal employee referral program
  • Campus placement office listing
  • Local or ethnic advertising
  • Radio or TV advertising

All required recruitment must be completed within not less than 30 days and not more than 180 days from the date the application is filed. We recommend that all recruitment be conducted during one month, then wait one month for US worker response, then file the labor certification application 30 days after the last recruitment step was completed. It is not necessary for the employer to offer a job to any applicant as a result of the labor certification process. However, if the DOL determines that US qualified US workers are available, the labor certification application will be denied.

Assuming that none of the job applicants is suitable, the labor certification application will be filed with DOL. Shortly after filing, the DOL will email the employer asking for confirmation that the case should be processed. In the course of its processing, the DOL will (1) approve the application without any request for information, (2) contact the employer and unsuccessful job applicants for clarification and documentation, or (3) deny the application. If denied, generally the employer may re-file the application after overcoming the deficiency.

Immigrant Visa Petition

Upon receiving an approved labor certification, the employer files the immigrant visa petition (Form I-140) with the Citizenship and Immigration Service (USCIS). The USCIS will determine three issues: (1) whether the employee meets the minimum job requirements, (2) which employment-based immigrant preference category the employee qualifies to immigrate under, and (3) whether the employer has the financial resources to pay the offered salary.

The employment-based immigrant visa preference categories available to labor certification beneficiaries are called “Second Preference” and “Third Preference” and “Other Worker.” A Second Preference immigrant visa petition may be approved if the labor certification states that a Master’s degree (or higher or equivalent) is required, and the beneficiary possesses that degree or equivalent. A Third Preference immigrant visa petition may be approved if the labor certification form states requirements ranging from two years experience or post-high school education up to less than a Master’s degree, and the beneficiary possesses that level of education and/or experience. An Other Worker immigrant visa petition may be approved if the labor certification form states requirements less than two years experience or education.

The employer will need to provide a federal income tax return showing its ability to pay the wage offer in the year the labor certification was filed. The USCIS requires net income (profit) or net current assets equal to at least the prevailing wage. If the employer is already paying the employee the prevailing wage or higher, usually, the USCIS will accept payroll records in lieu of the federal income tax return. The employee will need to provide documentation of his or her qualifications for the job offer, such as letters of reference from former employers, transcripts, diplomas, certificates, etc.

Permanent Residence

The third and final step toward permanent residence is the application for permanent residence. The employee’s eligible family members apply for permanent residence at this time. If filed inside the US with the USCIS, the permanent residence application is called “adjustment of status” (Form I-485). If the employee is eligible to file an application for adjustment of status and there is no immigrant visa waiting list, the I-485 application may be filed at the same time as the I-140 immigrant visa petition. This means step two and three may be combined for those who apply for permanent residence inside the US.

If the application for permanent residence is filed outside the US at an American consulate (“Consular Processing”), the permanent residence application is an application for an “immigrant visa” (Form DS-230). The I-140 immigrant visa petition must be filed and approved before filing the DS-230. After the employee obtains an immigrant visa at an American consulate and is admitted at a US port of entry, he or she will be granted permanent residence.

For an indeterminate period of time after becoming a permanent resident, the employee should work for the sponsoring employer under the terms of employment stated in the labor certification. However, sponsorship for permanent residence does not affect any preexisting agreement for at-will employment between the employer and employee.

Processing Times

Due to fluctuations in the immigration system, it is difficult to accurately predict how long it will take to obtain permanent residence. The typical processing time for a labor certification varies from 2 weeks to 2 months or more (after recruitment and preparation of 2 months). Processing times for immigrant visa petitions is available from the USCIS website.

The last step, the permanent residence application, can be filed only if the employee’s “priority date” for an immigrant visa is current. The priority date is set by the date the labor certification was filed. Current priority dates are posted monthly in the Visa Bulletin, available at the Department of State website. The difference in time between this month’s priority date and an employee’s priority date roughly approximately the amount of time the employee will need to wait before filing the permanent residence application. The permanent residence application is normally processed within one year from filing this step.

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Multinational Manager Immigrants

To qualify for permanent residence under the Multinational Managers and Executives quota, the employee or investor and the US and overseas companies must meet certain requirements. To qualify under this special process, called First Preference immigration, the employee or investor must have been a manager or executive overseas and hold a similar position in the US. A first preference immigrant is approved without any test of the US labor market (labor certification). Unlike the labor certification process, there is no restriction on a foreign investor owning the company that sponsors him or her for permanent residence. For most quota nationalities, this process takes about one year to complete.

Company Requirements

The sponsoring company in the US and employee’s overseas employer must have at least 50% common ownership. The overseas company must be a parent, branch, subsidiary, or affiliate of the sponsoring US company. The overseas company and the US company both must have been actively conducting business for at least one year. Both businesses should employ at least 5-7 workers in a pyramid type organizational structure.

Employee / Investor Qualifications

The employee or investor must document one-year overseas employment within the last three years and in a managerial, executive, or specialized knowledge capacity. First-line supervisors are not considered managers unless they supervise college graduate professionals. The US job must be in managerial, executive, or specialized knowledge capacity. The employee must be qualified for work in the US (education, experience, English language capacity, etc.)

Immigrant Visa Petition

The US employer files an Immigrant Visa Petition (Form I-140) with the Citizenship and Immigration Service (USCIS). The USCIS will determine two issues: (1) whether the employee meets the minimum job requirements, and (2) whether the employer has the financial resources to pay the offered salary.

The employer will need to provide a federal income tax return showing its ability to pay the wage offer in the year the labor certification was filed. The USCIS requires net income (profit) or net current assets equal to at least the wage offered. If the employer is already paying the employee the prevailing wage or higher, usually, the USCIS will accept payroll records in lieu of the federal income tax return. The employee will need to provide documentation of his or her qualifications for the job offer, such as letters of reference from former employers, transcripts, diplomas, certificates, etc.

Permanent Residence

The third and final step toward permanent residence is the application for permanent residence. The employee’s eligible family members apply for permanent residence at this time. If filed inside the US with the USCIS, the permanent residence application is called “Adjustment of Status” (Form I-485). If the employee is eligible to file an application for adjustment of status and there is no immigrant visa waiting list, the I-485 application may be filed at the same time as the I-140 immigrant visa petition. This means step two and three may be combined for those who apply for permanent residence inside the US.

If the application for permanent residence is filed outside the US at an American consulate (“Consular Processing”), the permanent residence application is an application for an “Immigrant Visa” (Form DS-230). The I-140 immigrant visa petition must be filed and approved before filing the DS-230. After the employee obtains an immigrant visa at an American consulate and is admitted at a US port of entry, he or she will be granted permanent residence.

For an indeterminate period of time after becoming a permanent resident, the employee should work for the sponsoring employer under the terms of employment stated in the labor certification. However, sponsorship for permanent residence does not affect any preexisting agreement for at-will employment between the employer and employee.

Processing Times

Due to fluctuations in the immigration system, it is difficult to accurately predict how long it will take to obtain permanent residence. Processing times for immigrant visa petitions is available from the USCIS website.

The second step, the permanent residence application, can be filed only if the employee’s “priority date” for an immigrant visa is current. For most nationalities, first preference immigrant visa numbers are current and expected to remain so in the future. The priority date is set by the date the immigrant visa petition was filed. Current priority dates are posted monthly in the Visa Bulletin, available at the Department of State website, http://travel.state.gov/visa/bulletin/bulletin_1360.html. The difference in time between this month’s priority date and an employee’s priority date roughly approximately the amount of time the employee will need to wait before filing the permanent residence application. The permanent residence application is normally processed within one year from filing this step.

To schedule a consultation on permanent residence under the Multinational Manager and Executive quota click here.

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Immigrant Nurses

For a Registered Nurse (RN), the permanent residence process comprises two steps: the immigrant visa petition and the application for permanent residence. After becoming a permanent resident, the RN is expected to work for the sponsoring employer under the terms of employment stated in the visa petition for an indeterminate period of time. However, sponsorship for permanent residence does not affect any agreement between the employer and the RN for at-will employment. The following is a summary of the major requirements.

Immigrant Visa Petition

The Department of Labor (DOL) has pre-certified that there is a shortage of qualified, willing and available U.S. workers to fill RN positions throughout the United States. This is called “Schedule A” certification. With Schedule A certification, an employer is not required to obtain an individual “labor certification” from the DOL prior to filing the immigrant visa petition. For a job offer to qualify under Schedule A, the employer must offer a full time job which carries prevailing wages and working conditions. The first steps involve finalizing the job description and minimum requirements for the position, and obtaining a prevailing wage determination. Information on the job offer is contained on a labor certification form, but the form is filed with the immigrant visa petition, not with the DOL.

The immigrant visa petition (Form I-140) is filed with the Citizenship and Immigration Service (USCIS). The USCIS will determine three issues: (1) whether the job offer meets the Schedule A requirements, (2) whether the employee meets the minimum job requirements and (3) whether the employer has the financial resources to pay the offered salary.

Permanent Residence

The application for permanent residence may be filed in two ways. The employee’s eligible family members apply for permanent residence at the same time.  This includes the spouse and any unmarried children less than 21 years of age. If the permanent residence application is filed inside the United States with the USCIS, it is called Adjustment of Status  (Form I-485). As long as there is no waiting list under the Schedule A immigration quota, the Immigrant Visa Petition and Adjustment of Status steps can be filed at the same time.

If the application for permanent residence is processed outside the United States at an American consulate, it is called Consular Processing of an Immigrant Visa  (Form DS-230). The Consular Processing step can only be started if the Immigrant Visa Petition has already been approved.
The RN must obtain a “VisaScreen” certificate as part of the permanent residence process. The VisaScreen certificate shows compliance with nursing skills, education and English language capacity.  Information on the VisaScreen may be obtained from this website: www.ichp.org.

For further information, please contact us.

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Religious Worker Immigrants

The permanent residence process for Religious Workers comprises two phases: (1) theSpecial Immigrant Visa Petition and (2) the Permanent Residence Application. The following is a summary of the major requirements.

US immigration laws provide a temporary visa for religious workers, called the R-1 visa. The requirements for the R-1 visa differ from the requirements for sponsorship for permanent residence as a Religious Worker. The R-1 visa will generally be denied to a person who is being sponsored for permanent residence. In the immigration process, the employer is called the “Petitioner” and the sponsored employee is called the “Beneficiary.”

1. Special Immigrant Visa Petition (Form I-360)

The employer / petitioner files the Special Immigrant Visa Petition (Form I-360) with the Citizenship and Immigration Service (USCIS). The USCIS will determine two issues: (1) whether the Beneficiary meets the requirements for classification as a Special Immigrant Religious Worker, and (2) whether the Petitioner meets the immigration requirements, including whether it has the financial resources to pay the offered compensation.

Petitioner Requirements. The petitioner must be a religious organization or affiliate. This is generally demonstrated by showing the employer either has received, or would receive, Internal Revenue Service recognition as a bona fide non-profit religious organization. The petitioner must be part of an identifiable denomination. The employer must also demonstrate it has the present financial capacity to support the beneficiary and have a bona fide need for the R-1 worker’s services.

Job Offer Requirements. The job offered must be for full time work in a religious occupation. There are three qualifying religious occupations: ordained ministers (such as a priest, pastor, rabbi, imam, Buddhist monk), persons who have made a long term religious commitment but who are not ordained (such as nuns, deacons, and Christian monks), and those performing other religious work (such as cantors, music leaders, religion teachers, counselors, and translators). Work that is primarily non-religious does not qualify (for example, church administrators, teachers of non-religious subjects, clerical workers, manual laborers, etc). The petitioner must support the beneficiary through regular wages, benefits and direct provision of housing, food, clothing, medical help, etc. The beneficiary’s support cannot be dependent upon his or her own fund raising.

Beneficiary Requirements. The beneficiary must be qualified to work in the religious occupation. Ministers must have the required seminary degree, ordination certificate, or other recognition. Other religious workers must document their religious commitment and experience through certificates and reference letters. In addition to qualification, the beneficiary must show that he or she was performing the religious work as an ordained minister, a person who has made a long term religious commitment, or a person performing other religious work. This work experience must be continuous, for at least two years up to the date the I-360 was filed. Any gap in religious work during these two years will result in denial of the I-360. The two years religious work must be in the same capacity as the work that is offered by the petitioner. The beneficiary must be part of the same religious denomination as the petitioner for at least two years.

2. Permanent Residence Application

The final step is the application for permanent residence. This step can be taken only after the Special Immigrant Petition (From I-360) has been approved. The employee’s eligible family members apply for permanent residence at this time. The spouse and any unmarried children under age 21 are considered dependents for immigration purposes.

If filed inside the US with the USCIS, the permanent residence application is called “adjustment of status” (Form I-485). The employee and family dependents file for adjustment of status at the same time. They should be eligible for a work permits and travel permits when the adjustment of status application is filed. Normally the adjustment of status application will be approved without an interview. The employee and dependents will become a permanent resident of the US when the adjustment of status application is approved.

If the application for permanent residence is filed outside the US at an American consulate (“Consular Processing”), the permanent residence application is an application for an “immigrant visa” (Form DS-230). The employee and family dependents will notbe eligible for work permits and travel permits during consular processing. After the employee obtains an immigrant visa at an American consulate and is admitted at a US port of entry, he or she will be granted permanent residence.

For an indeterminate period of time after becoming a permanent resident, the employee should work for the sponsoring employer under the terms of employment stated in the labor certification. However, sponsorship for permanent residence does not affect any preexisting agreement for at-will employment between the employer and employee.

Processing Times

Due to fluctuations in the immigration system, it is difficult to predict how long it will take to obtain permanent residence. The typical processing time for a Special Immigrant Visa Petition is available from the USCIS website.

The second step, the permanent residence application, can be filed only if the I-360 has been approved and the employee’s “priority date” for an immigrant visa is current, under the employment-based fourth preference immigration category. The priority date is set by the date the I-360 was filed. Priority dates are posted monthly in the Visa Bulletin, available at the Department of State website,http://travel.state.gov/visa/bulletin/bulletin_1360.html. The difference in time between this month’s priority date and an employee’s priority date roughly approximately the amount of time the employee will need to wait before filing the permanent residence application. In the past there has been no significant waiting list for the employment-based fourth preference immigration category.

Assuming there is no waiting list, the permanent residence application can be filed as soon as the I-360 has been approved. The permanent residence application is normally processed within one year from filing this step.

For further information, contact us.

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Outstanding Researchers and Professor

To qualify for this category of the Employment Based First Preference quota, the applicant must have international recognition for outstanding academic achievements in a particular field and at least three years experience in teaching or research in that field. No labor certification is required, but the applicant must have a sponsoring employer who provides a qualifying job offer.

If the sponsoring employer is a university or other institution of higher education, the job offer must provide a tenure or tenure track teaching or comparable research position. If the employer is a private company (either for-profit or non-profit) rather than an educational institution, the employer must employ at least three persons full time in research activities and the employer itself must have achieved documented accomplishments in an academic field.

Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:

  1. Receipt of major prizes or awards for outstanding achievement:
  2. Membership in associations that require their members to demonstrate outstanding achievements;
  3. Published material in professional publications written by others about the alien’s work in the academic field;
  4. Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
  5. Original scientific or scholarly research contributions in the field;
  6. Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

Procedures

The Immigrant Visa Petition, Form I-140, is filed by the applicant with the Citizenship and Immigration Service (USCIS). If the applicant meets the requirements for adjustment of status, he or she may file an application for adjustment of status, Form I-485 concurrently with the I-140. In the alternative, the applicant may wait until the I-140 has been approved and then proceed with either adjustment of status or consular processing of an immigrant visa.

For further information, please contact us.

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Extraordinary Ability Immigrants

Requirements

This category of the Employment Based First Preference quota is reserved for people 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. These applicants do not need a labor certification nor a specific job offer. However, their work in the US must be in the field in which they have extraordinary ability. Applicants may file their own immigrant petition with the USCIS, without employer sponsorship. The applicant must be one of “that small percentage who have risen to the very top of the field of endeavor,” to be granted this classification.

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Membership in associations in the field which demand outstanding achievement of their members;
  3. Published material about the alien in professional or major trade publications or other major media;
  4. Evidence that the alien has judged the work of others, either individually or on a panel;
  5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
  6. Evidence of the alien’s authorship of scholarly articles in professional or major trade publications or other major media;
  7. Evidence that the alien’s work has been displayed at artistic exhibitions or showcases;
  8. Performance of a leading or critical role in distinguished organizations;
  9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field;
  10. Evidence of commercial successes in the performing arts.

Procedures

The Immigrant Visa Petition, Form I-140, is filed by the applicant with the Citizenship and Immigration Service (USCIS). If the applicant meets the requirements for adjustment of status, he or she may file an application for adjustment of status, Form I-485 concurrently with the I-140. In the alternative, the applicant may wait until the I-140 has been approved and then proceed with either adjustment of status or consular processing of an immigrant visa.

For more information, please contact us.

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Exceptional Ability Immigrants

This category of the Employment Based Second Preference quota is reserved for persons with exceptional ability in the arts, sciences, or business. “Exceptional ability” means the applicant has a level of expertise that is significantly above the ordinary level of expertise of people working in the field in the US. Also, the applicant must show that, because of his or her exceptional ability, he or she will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.” The Exceptional Ability Immigrant must obtain an individual labor certification (and have an employer sponsor), or a “National Interest Waiver” of the labor certification requirement (without an employer sponsor).

In order to be classified as an Exceptional Ability Immigrant, the applicant must provide documentation of three of the following:

  1. An official academic record showing 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;
  2. Letters documenting at least ten years of full-time experience in the occupation being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
  5. Membership in professional associations;
  6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

National Interest Waiver of the Labor Certification Requirement

Approval of the national interest waiver means that the USCIS has determined that it is in the national interest that the applicant not be required to obtain an individual labor certification A National Interest Waiver requests are determined based on evidence that approval of the waiver has been requested by an interested US government agency and the waiver will:

  • Improve the U.S. economy;
  • Improve wages and working conditions of U.S. workers;
  • Improve education and training programs for U.S. children and under-qualified workers;
  • Improve health care;
  • Provide more affordable housing for young and/or older, poorer U.S. residents;
  • Improve the environment of the United States and making more productive use of natural resources

Procedures

The Immigrant Visa Petition, Form I-140, is filed by the applicant with the Citizenship and Immigration Service (USCIS). If the applicant meets the requirements for adjustment of status, he or she may file an application for adjustment of status, Form I-485 concurrently with the I-140. In the alternative, the applicant may wait until the I-140 has been approved and then proceed with either adjustment of status or consular processing of an immigrant visa.