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Types of Employment-Based Immigrant Visas
Priority Workers: First Preference
Foreign nationals who fall into the following categories are classified as priority workers and no labor certification is necessary for them:
- Foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who have obtained sustained national or international acclaim, whose achievements are recognized through extensive documentation, who intend to work in the area of their extraordinary ability, and whose contributions would substantially benefit the United States in the future. These foreign nationals do not need an offer of employment to support their application.
- Foreign nationals who are professors and researchers who have received international recognition as outstanding in their specific field, who have a minimum of three years of teaching experience or research in their field, and who have been offered tenure-track teaching or research positions.
- Foreign nationals who are multinational executives or managers who have been employed in executive or managerial capacities with the sponsoring employer for a minimum of one year in the three years preceding their application and who intend to continue to work for the sponsoring employer, a subsidiary or affiliate.
Professionals Holding Advance Degrees and Aliens of Extraordinary Ability: Second Preference
Foreign nationals holding advanced degrees or the equivalent and aliens of exceptional ability can obtain visas in this Immigrant visa category. Labor certifications are necessary for these foreign nationals. However, Group II, Aliens of exceptional ability in the sciences and arts who are also outstanding in their fields, are currently exempt from labor certification by the Department of Labor under Schedule A. A foreign national petitioning in this category must have earned an advanced degree, a master’s degree or a bachelor’s degree plus five years of increasing responsibility in his field, or have exceptional ability in the arts, sciences or business. Those individuals petitioning in these categories may qualify for a waiver of the labor certification requirement if their work is found to benefit the national interest of the United States.
Skilled Workers, Professionals Holding Basic Degrees and Other Workers: Third Preference
This category includes foreign nationals who are skilled workers with a minimum of two years of training or experience (who are not seasonal or temporary workers), professionals with baccalaureate degrees and other workers, including unskilled laborers ( who are not seasonal or temporary workers). These immigrants need labor certifications.
Special Immigrants: Fourth Preference
Foreign nationals classified as special immigrants include: some medical doctors who have practiced continuously in the United States since 1978, long-term United States government workers abroad, battered spouses, and religious workers. These job-related visas do not require that labor certifications be obtained.
Immigrant Investors: Fifth Preference
Foreign nationals who invest a minimum of $1,000,000 in a United States commercial enterprise that maintains or provides full-time employment for at least ten United States workers can obtain immigrant visas in this category. Foreign nationals who invest at least $500,000 in targeted employment areas can qualify for immigrant visas in this category. The investment must last for at least two years before the investor can obtain an immigrant visa. Passive investments do not qualify for this visa category. The successful petitioner in this category must actively participate in the management of the business. No offer of employment or labor certification is needed for this category.
The Process of Obtaining Employment-Based Immigrant Visas
Obtaining an immigrant visa through an employment-based visa requires three steps: The first is a labor certification petition (required for the second and third preference categories only); the second is an immigrant visa petition and the third step is adjustment of status for those in the United States or consular processing for those outside of the United States.
The Labor Certification Process
The labor certification process is required for the second and third preference categories. Second preference petitioners whose work benefits the national interest of the United States are exempt from the labor certification requirement. However, other second and third preference category petitioners must go through the labor certification process. In this process, the employer petitions the Department of Labor to certify that a shortage of qualified and available United States workers exists for the position and that the immigrant’s employment will not adversely affect wages or working conditions in the United States.
An employer needs to recruit actively for United States workers to fill the position in a publication that is most likely to produce a qualified United States worker. The employer cannot place unduly restrictive requirements on the position that favor the foreign national. Candidates for the position may be rejected only for legitimate business reasons. If the recruitment process produces a qualified United States worker for the position, the labor certification is not approved even if the foreign national is more qualified for the position.
Employers seeking labor certification must also prove that the wage they are offering is not less than the average wage paid to United States workers with comparable employment duties where the job is offered. The foreign national must fulfill all of the requirements for the position at the time the petition is filed.
PERM is the new labor certification regulation. It became effective on March 28, 2005. It differs from the prior labor certification process in numerous ways. May Law Group knows the PERM labor certification system well and files numerous PERM applications each month. Each day the staff of May Law Group studies developments in the law relating to PERM and prepares to deal with the most complex and difficult situations that may arise under PERM.
The following are highlights of the PERM rule:
- Internet filing is permissible as well as filing via mail to two national processing centers.
- The processing time is faster. The Department of Labor renders decisions within 45 to 60 days providing that the filing is performed via the internet, the case is not a re-filed case and there is no audit or supervised recruitment. Audited cases will not be processed within this time frame.
- Experience obtained on the job with the same employer is permitted for positions that are not substantially comparable to the original job; not substantially comparable means that the job differs more than fifty percent from the original job.
- Under PERM there is no waiting period to re-file a petition that has been denied. Prior to PERM a waiting period resulted after a denial.
- Under PERM an employer conducts recruitment during the 30 to 180 day period prior to filing the labor certification application.
- A prevailing wage must be obtained by the employer from the state workforce agency prior to beginning recruitment.
- Under PERM the employer cannot offer 5% less than the prevailing wage. The 5% differential is eliminated.
- Employers must maintain an audit file of filed labor certifications for five years after each case is filed.
- Employers are no longer required to file supporting documentation with the labor certification filing. Under PERM supporting documentation, such as the resumes received in response to an advertisement for the position, copies of the actual advertisements for the position, and the recruitment results, are placed in the audit file to be retained for five years.
- The newspaper advertisement under PERM must contain the name of the employer, direct applicants to send resumes or report to the employer, describe the job opportunity in a manner sufficient to apprise U.S. workers of the job opportunity, and indicate where the job is located in order to apprise job applicants of the commuting distance. The advertisement does not need to include a salary. If a salary is included the salary cannot be lower than the prevailing wage.
- Professional positions, those requiring a college degree or higher education, must select three additional recruitment steps. Two of the three methods of recruitment must be completed in the 30 to 180 day period prior to filing the labor certification application. One method of recruitment can be conducted in the 30 day period prior to filing.
- There is no fee charged by the Department of Labor for filing a PERM application.
- Business necessity is still permitted to justify some job requirements under PERM.
- Prospective PERM employers are not permitted to reject U.S. applicants if the U.S. worker could acquire the skills necessary to perform the job during a reasonable period of on the job training.
- Audits of an employer’s audit file can arise under PERM either randomly or upon review of the labor certification application. Answers to specific questions on the labor certification applications can trigger audits. Supervised recruitment by the Department of Labor can result from an audit.
- The Department of Labor sends out audit letters requiring the employer to provide the supporting documentation in the audit file. Employers have thirty days to respond to the audit letters. If an employer does not provide the required documentation, the labor certification will be denied and the Department of Labor can require the employer to utilize the supervised recruitment process for up to two years for subsequent labor certification filings. An audit by the Department of Labor may also result in supervised recruitment.
- Labor certifications filed under the previous labor certification system can continue under the old labor certification system or be re-filed under PERM. Re-filing of previously submitted labor certifications is permitted under PERM in certain circumstances with retention of the original labor certification priority date. In order to re-file and retain the original priority date the following must be done:
- All PERM filing and recruitment requirements met and a PERM complaint labor certification must be filed along with a copy of the original labor certification.
- The job must be identical to the one listed in the original labor certification.
- No job order may have been placed with the state workforce agency.
- The original labor certification must be withdrawn.
- The PERM labor certification must be filed within 210 days of withdrawal of the original pre PERM labor certification.
18. The Federal Employment Identification Number of the employer determines the identity of the employer under PERM. Prior to PERM corporate relationships determined the identity of the employer for labor certification purposes.
Jobs with a Surplus of United States Workers
These are jobs the Department of Labor has determined have a sufficient number of United States workers available for employment and that hiring of foreign nationals would adversely impact United States working conditions. These jobs are usually low wage positions that require limited education or work experience. They currently include the positions of clerks and typists, short-order cooks, hotel and motel cleaners, taxi cab drivers, domestic workers, and nurses’ aides. Though labor certification petitions usually cannot be obtained for these positions, it is possible to file the information normally requested for a labor certification and to request a waiver of the Schedule B disqualification. Schedule B waivers are often granted for live-in domestic employees.
Immigrant Visa Petition
Once the labor certification petition is approved, the next step toward obtaining an immigrant visa is to file an immigrant visa petition. The prospective employer must petition the U.S. Citizenship and Immigration Services to classify the foreign national in a recognized occupational preference classification. The employer, who is seeking the foreign national as an employee due to business necessity, then needs to prove that the foreign national is qualified for the position and that the employer is able to pay the offered salary.
Application for Permanent Residence Status
The foreign national must apply for lawful permanent resident status within a preference classification. Applications for lawful permanent resident status can be filed as soon as the immigrant visa petition is approved. The foreign national and his spouse and unmarried children under 21 years of age must file a separate application for each applicant for permanent residence.
Immigrant visas can be processed abroad at the United States consulate in the immigrant’s home country. Those foreign nationals who apply abroad for immigrant visas usually must stay outside the United States while the permanent residence visa is processed. If a foreign national has entered the United States with a nonimmigrant visa, he should apply for permanent residence in the United States through the adjustment of status process.
Processing Overseas at a United States Consulate
Approval of an immigrant visa petition filed abroad is transmitted to the United States consulate where the foreign national resides. The consulate will give the foreign national visa interview instructions that include applications for permanent residence as well as a list of the documents that are needed by the consulate to complete processing of the application. Police certificates are required from each place where the foreign national resided for six months or more after the age of 16. The foreign national must also have a medical examination for HIV, syphilis, and tuberculosis.
A visa interview is scheduled at the consulate. At the interview, a consular officer checks the information in the permanent residence application and reviews the supporting documentation such as birth certificates, marriage certificates, divorce certificates, and financial support documents. The consular officer then decides if the foreign national is eligible to receive the visa. Once an immigrant visa is issued, the foreign national must enter the United States as a permanent resident within six months.
Adjustment of Status in the United States
A foreign national who has maintained lawful nonimmigrant status in the United States is allowed to apply for permanent residence by filing an adjustment of status application. An application for adjustment of status is made at the U.S. Citizenship and Immigration Services office where the foreign national resides in the United States. If a foreign national does something to violate his nonimmigrant status, he may still be eligible to file for an adjustment of status in the United States. Determination of eligibility is made on a case-by-case basis. An adjustment of status application can take from two to three years to be processed due to current backlogs. If the U.S. Citizenship and Immigration Services decides that the foreign national misrepresented his true purpose for entering the United States, the requested change of status will not be granted.
Once an adjustment of status application is filed, the foreign national must normally remain in the United States while it is processed. Leaving the United States without permission from the U.S. Citizenship and Immigration Services will cancel the adjustment of status application. The foreign national who has an adjustment of status pending can apply for advance parole. Advance parole enables the foreign national to embark on a trip abroad if foreign travel becomes necessary due to a personal emergency or a business necessity. Advance parole gives the foreign national with an adjustment of status pending permission to reenter the United States and prevents the adjustment of status application from being considered abandoned. The U.S. Citizenship and Immigration Services may issue an advance parole document to an individual who will trigger a bar to admission to the United States upon departing the United States. This frequently occurs when an individual has accrued unlawful presence in the United States that exceeds 180 days. The individual mistakenly believes that the approval of the advance parole document authorizes the readmission of the individual despite the bar the individual’s departure from the United States triggers. This can result in tragic situations for individuals and their families who rely on the advance parole document and are unaware of the legal consequences of the bar triggered by their departure from the United States. Legal advice should be sought by these individuals prior to filing the application for the advance parole travel document.
The foreign national who has filed an adjustment of status application can apply for and receive an employment authorization document. This document enables the foreign national to be employed by any employer while his adjustment of status application is pending. Family members of the foreign national may also apply for employment authorization documents. The employment authorization document should be sent to the applicant within ninety days of filing if it is approvable as filed. If the employment authorization document does not arrive within ninety days of the date on the receipt notice for the employment authorization application, the applicant may take the receipt notice and a new employment authorization application to the local U.S. Citizenship and Immigration Services office to obtain an interim employment authorization card. No additional fee is required to obtain the interim employment authorization card.
The interview for an adjustment of status applicant is similar to the interview United States consular officers conduct when processing immigrant visas. At the interview, an examiner checks the information in the application, verifies the necessary documentation, and determines if there is a basis for deeming the applicant inadmissible to the United States. Most U.S. Citizenship and Immigration Services offices do not interview adjustment of status applicants whose adjustments are based on employment. However, random interviews of employment based applicants are sometimes scheduled. If an adjustment of status application is approved, the applicant’s passport is stamped with a temporary approval notice and an Alien Registration Receipt Card, commonly called a green card, is mailed to the applicant.
Losing Permanent Residence Status
A foreign national who holds permanent residence status in the United States can lose his status in a number of ways. Abandonment is one way in which permanent residence can be lost. If the foreign national, either by intent, or by an act believed to show intent, abandons his United State’s residence he is deemed to have abandoned his permanent residence. A continuous absence from the United States for a long period can constitute abandonment of permanent residence. Absence from the United States for a period exceeding one year could trigger the presumption that a permanent resident has abandoned his permanent residence. A criminal conviction may also cause a permanent resident to lose his permanent resident status. Filing a fraudulent application is also cause to rescind permanent resident status.
An absence from the United States for less than six months by a permanent resident will not cause him to lose his status, provided the foreign national maintains a United States’ domicile. If a permanent resident plans to remain abroad for longer than six months, he should obtain a reentry permit to evidence his permanent resident status and the temporary nature of his trip. Reentry permits allow entrance to the United States for up to two years of continuous absence.
The foreign national who seeks a reentry permit must state that he plans to leave the United States on a temporary basis. If a foreign national has been living abroad and only returns to the United States for occasional visits, the reentry permit may be denied. The foreign national must to set a fixed period for his return to the United States or have real or personal property in the United States for a reentry permit application to be successful.
If a foreign national has established a business in the United States, he may apply for an immigrant visa to work for his business or to stay in the United States for a period longer than a nonimmigrant visa would allow. A foreign national who fulfills the threshold requirement for an immigrant investor visa can obtain permanent residence under the fifth employment-based preference category. A foreign national investor who is a multinational manger or executive transferred from the parent company or a subsidiary abroad may qualify for permanent residence based on his position.
The Department of Labor is reluctant to permit a self-employed foreign national to obtain a labor certification. If the foreign national’s investment is less than the amount necessary for the fifth employment-based preference or if the foreign national does not qualify as a multinational manager or executive, the foreign national may find it difficult to receive permanent residence based on an employment offer from his own company. The Department of Labor presumes that the company is not really attempting to find a qualified United States worker for the position, but is attempting to gain permanent residence for the investor who does not meet the minimum investment requirement and the required number of employees. Labor certification for these individuals requires that an arm’s-length relationship be established between the employer and the owner-prospective employee. The foreign national may need to divest himself of his ownership interest by forming a long-term irrevocable trust that excludes him from management and establishes that the foreign national is unable to make management decisions.
Contact an Immigration Attorney in Pittsburgh or Philadelphia, Pennsylvania, New York
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