There are several ways of immigrating to the United States permanently, or becoming a lawful permanent resident (“LPR”), based on one’s employment. To obtain immigrant status, an applicant must meet both the substantive and numerical requirements of the law. Substantively, one must qualify as an employee of a sponsoring employer or prospective employer.
Covers “priority workers.” No labor certification is required in this category. Roughly 40,000 visas have been allocated annually to this group. This category has three subcategories.
Aliens with “extraordinary ability” in arts, sciences, education, business or athletics – To qualify in this sub-category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that his or her contribution would “substantially benefit” the United States prospectively.
Outstanding professors and researchers – To qualify in this sub-category, the applicant must establish international recognition or acclaim, must have at least three years’ experience in teaching and research in the field, and must have an offer of employment for a tenured or tenured-track teaching position at a U.S. university or college, or a comparable research position in private industry.
Certain multinational executives and managers – This sub-category provides an immigrant visa for individuals who were employed as executives or managers overseas during at least one year within the three-year period immediately prior to transfer into the United States,and who are transferred to the United States to perform executive or managerial duties. The overseas and U.S. employers must be the same or affiliated entities.
The second employment-based category annually allows for 40,000 visas, plus any spilldown of unused visas from Category EB-1. This category has two sub-categories. The first is open to members of the professions holding advanced degrees (e.g. above that of baccalaureate) or their equivalent. The second sub-category is available to those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Under the second sub-category, the applicant’s exceptional ability must be demonstrated by more than just a degree or license, and must be substantially above that normally encountered in the sciences, arts or business.
An applicant in this category generally must obtain a labor certification for his position. However, a specific job offer and labor certification may not be necessary if an applicant can demonstrate that such an exemption would be in the national interest.
This category also allows for 40,000 visas annually, plus any spilldown of unused visas from Categories EB-1 and EB-2. There are three sub-categories in this category. An applicant in each of these sub-categories usually must obtain a labor certification for his or her position.
Skilled workers – An alien qualifies as a skilled worker if, at the time of petitioning for classification, he or she is capable of performing skilled labor requiring at least two years training or experience, and is being sponsored for a permanent position for which qualified workers are not available in the United States.
Professionals – This sub-category encompasses aliens holding baccalaureate degrees or their equivalent who are members of the professions.
Other workers – This sub-category is reserved for aliens capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. A cap of 10,000 visas within the overall 40,000 annual limit for Category EB-3 is set for applicants seeking to qualify in this sub-category.
This category has 10,000 visas available per year, and encompasses religious workers, certain former United States government employees, and certain foreign nationals working for international organizations.
This “immigrant investor” category provides up to 10,000 visas annually to applicants who invest a minimum of $1 million in a new enterprise in the United States that will create jobs for at least ten United States citizens or permanent residents, other than immediate family members of the investor. In certain targeted employment areas, the investment may be reduced to $500,000.
If you have any questions regarding employment based immigration, please contact the Law Offices of Mark A. Urbanski.
Labor certification is a process which the law requires to be completed before most employment-based green card applications may be filed to ensure that U.S. workers are not displaced by the employment of a foreign worker and that the foreign worker’s wages are not depressed relative to those of U.S. citizens. A new labor certification program called Program Electronic Review Management (or “PERM”) went into effect on March 28, 2005. Unlike the previous labor certification process, PERM applications are filed directly with the Department of Labor over the Internet, and are processed very quickly. The state agencies supply the prevailing wage, but have no other involvement in the PERM process..
The recruitment stage of the labor certification process is how an employer must demonstrate that no U.S. workers are available for the position being offered to the foreign worker. Before filing an application, the employer must conduct specified recruitment activities, which must include the following:
> Two Sunday newspaper ads (or one Sunday newspaper ad and a professional journal where appropriate)
> A job order placed through the state workforce agency
> For professionals, at least three other forms of recruitment, which can include a commercial Internet ad; an ad on the employer’s Web site; an internal incentive program; participation in a job fair; on-campus recruiting or use of a campus placement office; local or ethnic newspapers; a trade or professional journal; a radio or TV ad; and the use of headhunter agencies.
Before obtaining a prevailing wage and beginning the recruitment process, it is critical that we choose the most appropriate job title and description of the requirements and duties of the position. The job opportunity must not have too many restrictive requirements, but at the same time should have all degrees, skills and experience justifiably required by the position so that potential applicants can be rejected if they do not meet the minimum requirements. Foreign languages or requirements that seem tailored to the alien’s personal background will be scrutinized by the Department of Labor, and will increase the chances of an audit. It is the employer’s burden to prove a bona fide business necessity for any qualifications that do not fit the normal descriptions of the occupation.
Applicants for the offered position may be rejected if, after reviewing their resumé and/or conducting an interview, any of the following apply:
> The applicant is not a U.S. Citizen or Legal Permanent Resident (this includes other aliens on valid visas);
> The applicant is not willing to work for the offered salary (no bargaining is required);
> The applicant does not meet the minimum requirements for the position, including any required degree, experience, skills or other credentials;
> The applicant is not available or willing to work the required days and hours required by the position;
It is important that your employer know that the Law Offices of Mark Urbanski will take care of all the paperwork involved in the labor certification process, and that all they have to do is cooperate with us in conducting the recruitment described above, including reviewing applications and possibly interviewing certain candidates, and then to sign several forms that I will prepare on their behalf. The employer will also need to complete a brief on-line registration on the PERM website to allow us to file labor certifications on their behalf. Finally, sponsors must maintain copies of the ads, resumes, and other documents showing that the recruitment actually occurred as reported. The DOL will audit selected cases and applicants must then produce all supporting documents within thirty days. The sponsor does not need to pay anything if they do not wish to do so. All costs involved in the labor certification process can be paid by the foreign worker.
The total time required to obtain the labor certification will be between 4 and 8 months, with 2-4 months for recruitment and 2-4 months for processing by the Department of Labor, although individual cases may vary. Once the labor certification has been approved, we will be able to apply for adjustment of status and a work permit for you, your spouse and children. Your work permit will arrive in 30-90 days after application. It would then be another 12 to 18 months before your adjustment applications would be approved and your green cards issued. Please note that your eligibility for adjustment of status will depend on your visa status or admissibility at the time of application.
The first documents we will need from you are your current resumé and a copy of your visa(s), I-94 card, passport and DS-2019 or I-20 forms (if applicable). After we begin the labor certification, we will also need experience letters to document your prior experience related to the position being offered to you, and any licenses, diplomas, certifications and other documents that may be required by the position being offered to you. We will also forward to you a data sheet to collect the biographic information about you and your family members, and another data sheet to collect the necessary information about your sponsor. Your sponsor should also be prepared to provide us with their tax return for the year in which the labor certification is filed, and possibly bank account statements and other financial records.
We will be happy to speak with your potential sponsor about this process in more detail and to answer any questions they may have. We will also be happy to talk to you further by telephone or to answer any of your questions by e-mail. Once you and your employer are prepared to go forward with the labor certification process, we will forward to you the retainer agreement and data sheets to begin the process. You will need to sign and return the retainer agreement with your initial payment, and you may fax the data sheets to our office to provide us with the basic information we need about you and your employer to begin crafting your labor certification case. We look forward to hearing back from you, and to representing you in this matter.