The most common way for foreign nationals to obtain permanent resident status based on employment is based through the labor certification (PERM) application process. This process consists of three steps: (1) labor certification; (2) immigrant visa petition; and (3) application for permanent residence. The first step consists of obtaining a certification from the U.S. Department of Labor (DOL) stating that the foreign national’s employer has tested the U.S. labor market and was unable to find any qualified, willing, and available U.S. workers to fill the offered position, and that hiring the foreign national will not adversely affect the wages and working conditions of any U.S. workers. This process, known as PERM (Program Electronic Review Management), usually involves the placement of several types of recruitment in various media over the span of several months. The employer must then document the specifics of each applicant who applied for the advertised position and the lawful, job-related reasons for each applicant’s rejection. PERM applications can take months to be approved, and the approval wait time can double if the DOL requests additional information, which is the case in approximately one-third or more of PERM applications filed. Only once the PERM application has been approved can the foreign national’s employer file the immigrant visa petition (step 2) with the U.S. Citizenship & Immigration Services (USCIS). For more information on obtaining permanent residence through the labor certification process, please visit Labor Certification (PERM).

Some foreign nationals may be granted permanent resident status based upon employment without having to go through the labor certification process if they are able to qualify for one of the classifications listed below. In addition, some classifications do not require the foreign national to have a specific offer of employment. These individuals may immediately file an immigrant visa petition directly with USCIS providing evidence of their qualifications. If their priority date is current and they are already in the U.S., they may also simultaneously apply for permanent resident status by filing an adjustment of status application with USCIS. If they are outside the U.S., they must first wait for the immigrant visa petition to be approved prior to applying for an immigrant visa at a U.S. Embassy or Consulate abroad.

The ability to avoid the labor certification process often saves considerable time and expense for both the employer and the employee. The following categories allow the direct filing of an immigrant visa petition without first having to file a PERM labor certification application:

Extraordinary Ability (EB-1)

Outstanding Professors and Researchers (EB-1)

Multinational Managers and Executives (EB-1)

National Interest Waiver (EB-2)

Special Immigrants (EB-4)

Immigrant Investors (EB-5)

Orner Law works with individuals and employers to ascertain whether a foreign national is eligible for permanent resident status, either through the PERM labor certification process, or through one of the other immigrant visa classifications that do not require labor certification. It is extremely important to thoroughly review the individual’s credentials and potential employment options before making any determinations as to a foreign national’s qualifications for permanent resident status based on employment. Our attorneys have extensive experience in assisting employers and individuals with applying for permanent resident status based upon the PERM application system, as well as the other immigrant visa classifications listed above.

Labor Certification (PERM)

Most foreign nationals who obtain permanent resident status based upon employment must first obtain a certification from the Department of Labor (DOL) that their employer has tested the labor market and has been unable to find qualified and available U.S. workers to fill the position. In addition, the employer must certify that employment of the foreign national will not adversely affect the wage and working conditions of similarly employed U.S. workers.

This application process, known as “labor certification” or “PERM” (Program Electronic Review Management), requires an employer to conduct recruitment for the foreign national’s position as set forth in the DOL regulations. There are three steps to obtaining permanent resident (green card) status under the PERM system as follows:

Step 1: PERM Labor Certification Application

The PERM application system requires the employer to conduct recruitment during the 180 day period prior to filing the online Labor Certification Application with the Department of Labor. Employers must evaluate the resumes of any U.S. workers responding to the recruitment to see if they meet the minimum requirements for the offered position as stated in the job description. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications. In addition, the job requirements may not be unduly restrictive unless adequately documented as arising from business necessity. PERM also requires that the employer obtain a government-issued prevailing wage and provide specific worksite notice to all employees that a PERM application is being filed, along with the full details of that position. The employer must maintain a file containing documentation relating to the recruitment, including a post-recruitment report detailing the lawful, job-related reasons for the rejection of any applicants, for a period of at least five years from the date of filing the PERM application. Once the PERM application is filed, it can be approved outright or it can receive an audit where the DOL may request documentation showing that the employer conducted all the required recruitment, wage and requirement determination, and information related to any applicants who were rejected. About one third or more of PERM cases filed with the DOL receive an audit.

If an audit is conducted, then the timing of the adjudication of the application may be delayed significantly. DOL currently requires about five months to process applications that have no discernable issues and about nine months to process cases that were randomly selected for an audit or for which the requirements fall outside of what the DOL considers to be “normal” for the occupation.

The date the PERM application is filed is the “priority date” of the foreign national’s application. The “priority date” can be thought of as that person’s place in line for an immigrant visa number. The third step of this process may not be filed until the foreign national’s priority date is current, that is, an immigrant visa number is available.

Step 2: Immigrant Visa Petition

Once the Department of Labor approves the PERM application, the next step is to prepare and file an immigrant visa petition (Form I-140) with the U.S. Citizenship & Immigration Services (USICS). In this petition, the employer is required to show that it has been unable to find qualified and available U.S. workers for the position, and that it has found a foreign worker who is qualified for the U.S. position. The employer must also show that the foreign national meets the minimum requirements for the position as indicated in the recruitment, and that it has the ability to pay the offered wage, both presently and at the time the PERM application was filed.

Step 3: Adjustment of Status Application in U.S. or Immigrant Visa Application Abroad

If the foreign national is in the U.S., the last step is to file an application to adjust the foreign national’s immigration status from temporary worker to permanent resident. If the foreign national is outside the U.S. or cannot adjust status in the U.S., the last step is to file an immigrant visa application at the U.S. Embassy or Consulate in the foreign national’s home country or country of last foreign residence. This step cannot be filed until an immigrant visa number is available (the person’s priority date becomes current). If the foreign national’s priority date is current at the time the PERM application is approved, the immigrant visa petition and adjustment of status application (steps 2 and 3) may be filed simultaneously.

Extraordinary Ability (EB-1)

Individuals who are eligible for extraordinary ability classification under the employment-based first preference category (“EB1-A”) have a major advantage in the green card process since they do not have to go through the long and arduous labor certification process normally required in other immigrant visa categories. Similarly, individuals who are eligible to file this type of petition can generally avoid the visa retrogression backlogs common in other visa categories. In addition, no specific offer of employment is required, although the applicant must show that he or she will continue to work in his or her area of expertise. Such evidence may include proof of existing commitments such as employment contracts or job offer letters from prospective employers or a statement from the applicant detailing plans on how he or she intends to continue his or her work in the United States.

To be eligible to file a petition as a person of extraordinary ability in the sciences, arts, education, business, or athletics, an individual must be able to demonstrate sustained national or international acclaim in the field of endeavor, meaning that he or she is one of a small percentage who has reached the very top of the field. In addition, these individuals must show that their achievements have been recognized in the field of expertise. To prove this level of acclaim, an individual must show proof of an extraordinary one-time achievement (a major internationally-recognized award such as a Nobel Prize or Academy Award) or at least three of the following:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
• Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts or evidenced by the membership criteria of the association.
• Published material about the applicant in professional or major trade publications or other major media.
• Evidence of the applicant’s participation, either individually or on a panel, as a judge of the work of others in the same field of specialization.
• Evidence of the applicant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
• Evidence of the applicant’s authorship of scholarly articles in professional or major trade publications or other major media.
• Evidence of the display of the applicant’s work at artistic exhibitions or showcases.
• Evidence that the applicant has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
• Evidence that the applicant has commanded a high salary or other significantly high remuneration in relation to others in the field.
• Evidence of commercial success in the performing arts as shown by box office receipts or record, cassette, compact disc, or video sales.

Despite the fact that the regulations only require an individual to show that he or she meets three of the above criteria, our attorneys present the U.S. Citizenship & Immigration Services (USCIS) with extensive evidence demonstrating that our clients satisfy as many of the criteria as possible. The standards for extraordinary ability classification are extremely high; an applicant who presents the USCIS with the bare minimum requirements may be asked for additional evidence or even denied if the USCIS determines that the evidence originally provided for a certain category was insufficient to warrant an approval. By providing the USCIS with as much evidence as possible in the original petition, our clients have a better chance of succeeding and obtaining an outright approval. In addition, we work with applicants to obtain detailed recommendation letters from internationally recognized experts in the field to verify why the individual is considered to be one of the preeminent and most unique professionals in his or her field of endeavor.

While the EB1-A criteria are nearly identical to those for the O-1 nonimmigrant visa for individuals of extraordinary ability, it should be noted that the USCIS consistently enforces the EB1-A criteria with much more scrutiny than the O-1 category. Therefore, individuals in O-1 visa status should consult with an experienced immigration attorney to determine their eligibility for EB1-A immigrant visa classification.

Outstanding Professors or Researchers (EB-1)

Individuals who are eligible for outstanding professor or researcher classification under the employment-based first preference category (“EB-1B”) have a huge advantage in the green card process because they may skip the long and arduous labor certification process normally required for employment-based permanent residency.  However, unlike the extraordinary ability classification (“EB-1A”), outstanding researcher applicants must have an offer of employment (tenure-track, tenured, or permanent) from a university or other institution of higher education or a private employer that employs at least three full-time researchers and has achieved documented accomplishments in an academic field.

To be eligible to file a petition as an outstanding professor or researcher, an individual must be able to demonstrate that he or she is recognized internationally as outstanding in a specific academic field. In addition, he or she must possess at least three years of teaching and/or research experience in the field of expertise. Teaching or research experience obtained while in pursuit of an advanced degree, such as a Ph.D., may be counted toward the three year requirement, but only if the individual has already acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The individual must document his or her work history with detailed letters from current and/or former employers describing job duties and duration of employment.

In addition to an offer of employment from a prospective U.S. employer in the form of a letter or employment contract, an individual applying for outstanding researcher classification must show  at least two of the following forms of documentary evidence:

• Documentation of receipt of major prizes or awards for outstanding achievement.
• Documentation of the applicant’s membership in associations that require outstanding achievements of their members.
• Evidence of published material in professional publications written by others about the applicant’s work in the academic field.
• Evidence of the applicant’s participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field.
• Evidence of the applicant’s original scientific or scholarly research contributions in the academic field.
• Evidence of the applicant’s authorship of scholarly books or articles in publications with an international circulation.

Multinational Managers or Executives (EB-1)

Individuals who are eligible for multinational manager or executive classification under the employment-based first preference (“EB-1C”) have a major advantage in the green card process. The most significant advantage for those who qualify as a multinational manager or executive is that there is no need for a labor certification. Obtaining a labor certification is a time-consuming process that seeks to determine whether a qualified U.S. worker is willing and available to fill the position sought by the foreign national. In addition to the time and expense of the labor certification process, a foreign national risks being denied if a U.S. worker with the minimum technical qualifications for the offered job position is found (even if the foreign national is actually more suitable for the position based on factors not considered in the labor certification process).

To qualify as a multinational manager or executive, the foreign national must have an offer of employment from a U.S. organization that is the parent, subsidiary, affiliate, branch, or joint venture of the previous employer abroad. The foreign national also must show that he or she worked with the qualifying employer abroad for at least one year within the three years preceding the green card filing or the initial entry into the U.S. (if already in the U.S.) and that both the past employment abroad and the prospective employment in the U.S. constitute executive or managerial employment. The regulations define executive or managerial employment as overall leadership of a company or department of a company, direct oversight over other professionals and projects, and high levels of discretionary authority and decision-making.

The U.S. petitioner must show that it has been doing business in the U.S. for at least one year before filing the application. Therefore, if a person first entered the U.S. in L-1 visa status to work for a new office, then the U.S. employer may not file this immigrant visa petition as a multinational manager on his or her behalf until the employer has been in business for at least one year.

While this immigrant visa category is the most common path to a green card for those foreign nationals already in the U.S. in L-1 visa status, it only applies to managers and executives (L-1A visa status). Specialized knowledge (L-1B visa status) workers are not included. It is also important to note that previous L-1 visa status is not a prerequisite to be eligible for classification as a multinational manager or executive.  However, an individual’s previous L-1A status provides a much stronger case for the EB-1C immigrant visa petition.

National Interest Waiver (EB-2)

Individuals who are eligible for national interest waiver (NIW) classification under the employment-based second preference category (“EB-2”) are at a tremendous advantage in the green card process because they may skip the long and arduous labor certification process normally required for employment-based permanent residency. Similarly, individuals who are eligible to file this type of petition can generally avoid the visa retrogression backlogs common in other visa categories. In addition, no specific offer of employment is required, so those seeking this classification may self-petition. However, the NIW category does require an applicant to establish, through extensive documentation, that he or she will engage in work that is in the “national interest” of the United States.  What is considered in the “national interest” of the United States is discussed further below.

To be eligible to file a NIW petition, an individual must demonstrate the minimum EB-2 criteria by showing that he or she either holds an advanced degree (any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate) or possesses exceptional ability in the sciences, arts or business, which means a degree of expertise significantly above that ordinarily encountered. An immigrant visa petition and a request for a waiver of the labor certification requirement under this category must include at least three of the following:

• Documentation showing that the applicant has earned an advanced degree from a college, university, school, or other institution of learning relating to the area of exceptional ability.
• Evidence in the form of letters from current or former employers showing that the applicant has at least ten years of full-time experience in the field of endeavor.
• A license to practice the profession or certification for the profession or occupation.
• Evidence that the applicant has commanded a salary or other remuneration for services that demonstrates exceptional ability.
• Evidence of membership in professional associations.
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

However, simply meeting the threshold EB-2 requirements is not sufficient to qualify for a waiver of the labor certification requirement. A NIW applicant must also show that his or her work is in the “national interest” of the United States. A 1998 administrative decision, In re New York State Dept. of Transportation 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”), sets forth the criteria in a three-prong test. An applicant’s work will be considered in the “national interest” of the United States if he or she can establish all of the following:

(1)     The employment sought is in an area of substantial intrinsic merit.

(2)     The employment will have a benefit that will be national in scope.

(3)     The national interest would be adversely affected if a labor certification were required for the applicant.

While the jobs that qualify for a national interest waiver are not defined by statute, each of the above requirements must be satisfied in order to be eligible for this immigration benefit. Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the United States and that benefits the U.S. national economy, culture, education or welfare in a meaningful manner. The second prong, that the applicant’s work, if successful, benefits the United States nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. The third prong, that the national interest would be adversely affected if a labor certification were required for the applicant, is the most difficult of the three prongs to establish. The U.S. Citizenship & Immigration Services interprets this requirement to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring the applicant to undergo the labor certification process. Applicants must therefore be able to demonstrate a past record of specific achievement in the field and cannot just rely on the potential benefits of their work.

Special Immigrants (EB-4)

Individuals who qualify for Special Immigrant classification under the employment-based fourth preference (“EB-4”) category may avoid the labor certification process. Special immigrant classification requirements vary widely and some may require the employer to file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Most of these individuals are either foreign national religious workers or employees and former employees of the U.S. government or benefiting the United States government abroad. There are a number of specialized jobs that may allow a foreign national to obtain a green card based on a past or current job, including:

• • Afghan/Iraqi Translators
• • Broadcasters
• • International Organization Employees
• • Iraqis Who Assisted the U.S. Government
• • NATO-6 Nonimmigrants
• • Panama Canal Employees
• • Physician National Interest Waivers
• • Religious Workers

Immigrant Investors (EB-5)

Individuals who are eligible for immigrant investor classification under the employment-based fifth preference category (“EB-5”) are at a tremendous advantage in the green card process because they may skip the long and arduous labor certification process normally required for employment-based permanent residency.  Similarly, individuals who are eligible to file this type of petition can generally avoid the visa retrogression backlogs common in other visa categories. However, these individuals must meet the required thresholds for levels of investment and demonstrated employment creation for U.S. workers.

The EB-5 program requires an immigrant investor to either invest in a new commercial enterprise or purchase an already existing business and improve it substantially. EB-5 investors may invest in their own company or participate in a U.S. Citizenship & Immigration Services (USCIS) designated EB-5 Regional Center, a private enterprise or a regional governmental agency with a targeted investment program within a defined geographic region.

The minimum investment for a personal enterprise is $1,000,000. However, this amount is reduced to $500,000 for targeted employment areas (for either personal enterprises or Regional Center investments). A targeted employment area is defined as a rural or high unemployment area. Investment capital may not be borrowed. In addition, the investor must be able to trace the lawful source of the funds being used as investment capital and those funds must be “at risk.”

The investment must also create or preserve ten (10) full-time jobs for qualifying U.S. workers. For a personal investment, the job creation must be direct, and the investor’s role in overseeing the enterprise must be direct and non-marginal. The Regional Center Program does not require that the investor’s enterprise directly employ ten U.S. workers – indirect job creation is permitted. Indirect jobs are those jobs created as a result of the capital invested in the new commercial enterprise. In addition, a regional center investor does not need to be directly involved in managing the investment.

Once the USCIS approves the initial immigrant visa petition, the investor and any qualifying family members (spouse and unmarried children under the age of 21) may apply for conditional green cards. Prior to the end of the two-year period of the conditional green card, the investor must apply for permanent residence by submitting a petition to remove the conditions to the USCIS along with evidence showing the continuing viability of the investment. After approval of this final step, the investor and qualifying family members are granted permanent resident status.