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EB-1: Priority Workers
The first employment-based immigration preference category (EB-1) is considered the most favorable for a number of reasons. Labeled "Priority Workers," foreign nationals who qualify for this category are exempt from the Labor Certification stage of the permanent residence process. This category is allotted 40,000 visas annually and receives top priority in the allocation of all employment-based visas.
A foreign national may qualify for the EB-1 category in various ways:
MULTINATIONAL MANAGERS OR EXECUTIVES:
Utilizing the regulatory requirements of the L-1A classification, an individual must have served the company or its qualified parent, subsidiary or affiliate abroad for at least one year during the last three years in a "managerial" or "executive" capacity. In addition, the permanent position offered to this individual must also meet the requirements for a "managerial" or "executive" position.
ALIENS WITH EXTRAORDINARY ABILITY:
Similar to the O-1 classification, foreign nationals with "extraordinary ability" in the sciences, arts, education, business and athletics may seek permanent resident status in the U.S. under the first employment-based immigration preference. Extraordinary ability means "a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor."
OUTSTANDING PROFESSORS OR RESEARCHERS:
Outstanding professors and researchers must be recognized internationally for their outstanding academic achievements in a particular field in order to qualify as Priority Workers. In addition, the applicant must have at least three years experience in teaching or research in their area of expertise and be tenured or on a tenure track at an institution of higher education. If the employer is a private company rather than a university or educational institution, the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.
While the EB-1 worker of extraordinary ability may independently petition for himself or herself, an employer must file the petition for an outstanding professor or researcher and a multinational executive or manager. Grzeca Law Group is happy to review a foreign national's qualifications to analyze eligibility for the EB-1 immigration category.
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EB-2: Advanced Degree Professional and Skilled Workers
The second employment-based preference category (EB-2) is reserved for professionals holding advanced degrees or persons of exceptional ability. Positions requiring a U.S. advanced degree (generally a Master's degree or higher) or foreign equivalent are classified as EB-2. In addition, if the proposed position requires a U.S. Bachelor's degree, or foreign equivalent, and at least five years of progressively responsible experience in the specialty, it may also be classified as EB-2.
Foreign nationals may also qualify for the EB-2 category as a person of "Exceptional Ability." This includes employees who, because of their exceptional ability in the sciences, arts or business, will prospectively and substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. and whose services are sought by an employer in the U.S.
Finally, certain foreign physicians who will practice medicine in a medically underserved area may qualify for the EB-2 category.
Generally, permanent resident applicants in the EB-2 category must begin the process with Labor Certification. However a limited number of the EB-2 applicants within the pool are eligible for a waiver of this requirement if it is considered in the national interest.
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EB-3: Professionals
Permanent residence applicants may be classified in the employment-based third preference category if they possess a Bachelor's Degree, or are considered a skilled or unskilled worker. Applicants in the EB-3 category must begin the process with Labor Certification. Each fiscal year there are 40,000 visa numbers (plus any unused visa numbers from the first two preference categories) available in this category. For more information on how to be classified in a preference category or how this backlog could affect your case, please contact Grzeca Law Group.
Stages in the Permanent Residence Process
If permanent residence is being pursued through an employer, there are two separate paths available depending on the current nonimmigrant classification, specific skills and requirements for the position.
Labor Certification
STAGE 1: PERM
For the majority of employment-based permanent residence cases, the first stage of this process is to prepare documentation to file a "Labor Certification"application with the U.S. Department of Labor (DOL) on the foreign national's behalf. This is a procedure, known as "PERM", in which the employer must demonstrate to the DOL that there are no qualified U.S. workers available for the position offered. The Labor Certification process requires the recruitment of U.S. workers through specific venues. If, at the end of the 60-day recruitment period, no qualified, willing and able U.S. workers are available to fill the position, the employer may proceed with filing an Application for Permanent Labor Certification (ETA 9089) with the DOL.
Click here to learn more about Labor Certification.
Click here to learn more about the second and third employment-based preference categories, which usually requires completion of the PERM process.
STAGE 2: IMMIGRANT PETITION FOR ALIEN WORKER
Once Labor Certification has been secured, an Immigrant Petition for Alien Worker (I-140) based on the certification is filed with U.S. Citizenship and Immigration Services (CIS). In this stage, CIS classifies the petition in one of the employment-based immigration visa preference categories based on the requirements of the position and determines the potential employee's eligibility for the position. Premium Processing is available for this filing.
STAGE 3: ADJUSTMENT OF STATUS OR CONSULAR PROCESSING
Approval of the I-140, and the availability of an immigrant visa number, determined by the nationality of the foreign national and the employment-based preference category, will entitle the foreign national to proceed with the final step of the permanent residence process through the filing of an Register Permanent Residence or Adjust Status (I-485) or attending a final immigrant visa interview at a U.S. Consulate or Embassy abroad. Upon approval of the I-485 Application or consular processing, the foreign national will receive his or her permanent resident card/green card.
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Adjustment of Status v. Consular Processing
When a visa number becomes available to permanent resident applicants who are in the U.S., they often have the option of "Adjusting Status" to that of a permanent resident without leaving the U.S. This is initiated through the filing of an Application to Register Permanent Residence or Adjust Status (I-485). "Consular Processing" and applying for an immigrant visa at a U.S. Embassy or Consulate abroad that would allow the applicant to receive an immigrant visa and permanent resident status when reentering the U.S. is another option.
If eligible to Adjust Status, no travel is required to complete the permanent residence process. Among other benefits, all applicants, including family members, are eligible to receive Employment Authorization Documents (EAD) and work while the case is pending. In addition, after an I-485 has been pending on the principal applicant's behalf for more than six months, they may be able to switch employers and/or jobs as long as the new job is within the same or similar occupational classification. Although processing times can vary, it often takes CIS well over a year to process I-485 applications.
Alternatively, when Consular Processing, applicants must either remain outside or leave the U.S. to attend an immigrant visa interview at a U.S. Embassy or Consulate and have a medical exam conducted abroad and no EAD is available to applicants during the pendency of the case. In addition, police clearances will be required from every country where each applicant has lived since the age of 16. On the other hand, this process may move relatively quickly compared to the adjustment of status process. Depending on the Embassy or Consulate, the entire process usually takes between five and ten months to complete. In addition, a minimum of 7 to 10 travel dates is typically necessary to complete the medical exams and attend the immigrant visa interview.
Grzeca Law Group works with all of its permanent resident applicants to determine whether Adjustment of Status or Consular Processing is the best option for them and their family.
I-485 Portability
An applicant for permanent residence based on employment is permitted to change jobs and "port," or transfer, their application from one employer to another when the following requirements are met:
The new job is in the same or similar occupational classification as the job for which the petition was filed;
The Immigrant Petition for Alien Worker (Form I-140) filed by the original employer has been approved; and,
The Application to Register Permanent Residence or Adjust Status (I-485) has been filed and remained unadjudicated for 180 days or more at the time the change of jobs occurs.
In addition, if a new employee has maintained his or her valid H-1B classification the new employer should consider "porting" their nonimmigrant classification to the company as extra assurance that the employee maintains his or her underlying nonimmigrant status and can continue to work with the company at all times. If the I-485 "port" petition is denied for any reason, the employee could find themselves without work authorization, which would result in their being taken off payroll until the issue can be resolved. Therefore, it is wise to investigate whether a new employee has a valid H-1B that can be ported to a company.
Grzeca Law Group has vast experience guiding companies and their new employees through the portability process in an effort to preserve this valuable immigration benefit.
Labor Certification
WHAT IS LABOR CERTIFICATION?
Labor Certification, also known as PERM, is the first stage in the three stage permanent residence process. Labor certification is an application submitted to the U.S. Department of Labor demonstrating that there are no qualified, able, willing and available U.S. workers to fill the position permanently.
WHO IS ELIGIBLE FOR LABOR CERTIFICATION?
Among others, foreign nationals who are working in the U.S. pursuant to H-1B or L-1B classification are eligible to pursue Labor Certification. This includes employees in jobs that would be classified in the second employment-based preference and the third employment-based preference. Some employees, such as L-1A multinational managers, are considered "priority workers" and can pursue permanent residence without going through labor certification.
HOW IS IT DETERMINED IF THERE ARE QUALIFIED, ABLE, WILLING AND AVAILABLE U.S. WORKERS?
The employer must advertise and recruit for the position. There are certain types of recruitment that the employer must do depending on the type of position and the employers typical recruitment procedures. Typically, the employer must actively recruit for the position for thirty days and then allow a thirty day quiet period to permit resumes to be submitted prior to filing the application for labor certification. The employer does not actually have to hire any of the U.S. applicants in the recruitment process, but if a qualified worker is found, the company cannot pursue labor certification on behalf of the foreign national. Furthermore, the foreign national cannot be involved in the recruitment process.
The Labor Certification process is very detailed and involves a lot of cooperation between the employer and employee. Grzeca Law Group has assisted many employers and employees through this process with great success.
Stages in the Permanent Process: Priority Worker
Certain employment-based permanent residence cases are exempt from having to obtain Labor Certification from the DOL which can be a costly and time consuming process. Examples of those exempt include: multi-national managers (individuals currently in the U.S. in L-1A intracompany transfer classification), those with outstanding or extraordinary abilities, and those who qualify for a National Interest Waiver.
STAGE 1: IMMIGRANT PETITION FOR ALIEN WORKER
Priority Workers begin the permanent residence process by filing an Immigrant Petition for Alien Worker (I-140) with U.S. Citizenship and Immigration Services (CIS). In this stage, CIS confirms that the position qualifies as exempt from Labor Certification and determines the potential employee's eligibility for the position.
Premium Processing is available. Click here to read more.
STAGE 2: ADJUSTMENT OF STATUS (CONCURRENT FILING) OR CONSULAR PROCESSING
Subsequent approval of the I-140 will entitle the foreign national to proceed with the final step in the permanent residence process by either filing an Application to Register Permanent Residence or Adjust Status (I-485) or by attending a final immigrant visa interview overseas. Interestingly, priority workers in the EB-1 preference category are currently permitted to concurrently file the I-140 and I-485, assuming their priority date is current. Although the final adjustment application will not be adjudicated until the I-140 is approved, both can be put "in line" to be processed at the same time. Upon approval of the I-485 application or consular processing, the foreign national will receive his or her permanent resident card/green card.
Click here to learn more about the option of adjusting status or consular processing.
Permanent Residence Based on a National Interest Waiver
Foreign nationals with "exceptional ability" in the sciences, arts or business and advanced-degree professionals may seek permanent resident status in the U.S. under the second employment-based preference category. An employer offering employment to a foreign national must file an Immigrant Petition for Alien Worker (I-140) to seek permanent resident status in this category, and typically both Labor Certification and a job offer are required to qualify. However, if U.S. Citizenship and Immigration Services (CIS) determines that an exemption from the job offer requirement would be in the national interest and waives the requirement, then Labor Certification is also waived. In that case, the foreign national or any person on his or her behalf may file the Petition.
In order to qualify for a National Interest Waiver, the Petitioner must establish that the foreign national's proposed employment is in an area of substantial intrinsic merit, the proposed benefit will be national in scope, and the significant benefit attributable to the foreign national's involvement in the proposed field of endeavor considerably outweighs the inherent national interest of protecting U.S. workers through the Labor Certification process. This last element requires a showing of unique knowledge, abilities or experience that establishes the foreign national as clearly superior to others in the field.
In addition, the Attorney General must grant a National Interest Waiver to a foreign physician if he or she works full time for five years (excluding time in a J-1 classification) in a Veterans Administration hospital or in a medically-underserved or health professional shortage area designated by the government, and if a federal agency or state department of public health determined that the physician's work is in the public interest.
Although there are very specific and high standards for obtaining a National Interest Waiver, Grzeca Law Group believes it is well worth the possibility to explore this option for many of our clients.
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Maintaining Permanent Residence / Reentry Permit
In order to maintain status as a U.S. Permanent Resident, certain rules govern any periods of absence from the U.S. A valid Permanent Resident Card ("green card") is sufficient documentation to re-enter the U.S. after any temporary trips abroad, provided that the absence from the U.S. is less than one year. For absences greater than one year, certain steps must be taken prior to leaving the U.S. in order to ensure that status is preserved and secure re-entry. These include applying for a Reentry Permit with U.S. Citizenship and Immigration Services (CIS) while in the U.S., as well as taking steps to demonstrate that there is no intention to abandon U.S. residence.
Due to recent changes in the Reentry Permit issuance procedure, upon receipt of the Reentry Permit application, CIS issues a Notice instructing the applicant to appear for a Biometrics/fingerprinting appointment at a CIS office in the U.S. Although applicants may request to reschedule this appointment, they are not permitted to select the new date and time. Ultimately, applicants will be required to return to the U.S. to complete the Biometrics prior to issuance of the Reentry Permit.
If you are a permanent resident or an employer planning to transfer a permanent resident outside the U.S., please contact our office well in advance of any prolonged trips so we may assist in applying for a Reentry Permit and any required Biometrics appointments prior to departure. In addition, we would be happy to counsel on other subjective factors that the government may consider when determining whether an individual intends to maintain U.S. permanent resident status.
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