Permanent Immigration Over view
Consequently, under the current law, there are four “basic” methods of acquiring Lawful Permanent Resident (LPR) status:
- Sponsorship by a specific close relative who is a U.S. citizen or an LPR
- Sponsorship by an employer with an offer of employment qualifying for a Labor Certification, or exempt therefrom
- Proving entitlement to refugee or asylum status
- Qualifying as a “diversity” immigrant
1. FAMILY BASED IMMIGRATION
Family-Based Immigration is allocated up to 465,000 visas per year. This total includes immediate relatives of U.S. citizens (who themselves may immigrate in unlimited numbers but are “counted” toward the numerical limitation); but a minimum of 226,000 visas must be made available to the four preference categories.
Nonquota Family Immigrants (not subject to numerical limitation themselves, but counted toward the annual “cap”):
- Spouses of U.S. citizens (“Conditional Resident Status”): requires Joint Petition before end of Two Year Period, or Waiver of Joint Petition Requirement in event of separation or divorce).
- Immediate Relatives of U.S. citizens, other than spouses: (parents of adult (age 21 or over) U.S. citizens; children of U.S. citizens, including step-children, adopted children, and orphans).
- Preference Family Immigrants (subject to numerical limitations)
The four Preference Categories established for Family-Based Immigrants are as follows:
- First Preference: unmarried sons and daughters of U.S citizens (23,400)
- Second Preference: spouses* and minor children of Lawful Permanent Residents, and unmarried sons and daughters of Lawful Permanent Residents (114,200)(at least 77% reserved for spouses and minor children) (*spouses of LPR’s also obtain Conditional Resident Status if married for less than two years)
- Third Preference: married sons and daughters of U.S. citizens (23,400)
- Fourth Preference: brothers and sisters of adult U.S. citizens (65,000)
2. EMPLOYMENT-BASED IMMIGRATION
Employment-Based Immigration is allocated up to 140,000 visas per year. There are five categories of Employment-Based Immigrants:
- Group 1 (the “E1” category). Priority Workers (40,000)(never requires a Labor Certification)
- a. aliens with extraordinary ability in the arts, sciences, education, business or athletics
- Requires (1) sustained national or international acclaim (2) achievements recognized through extensive documentation (3) intent to work in area of ability (4) must substantially benefit prospectively the U.S.
- b. outstanding professors and researchers
- Requires (1) international recognition as outstanding (2) at least 3 years teaching or research experience (3) must have tenured or tenure track teaching position, or comparable research position, with a hospital, university, research institution, or a private firm which employs at least three full-time researchers and has demonstrated research accomplishments.
- c. multinational executives or managers
- Requires employment with sponsor, its subsidiary or affiliate abroad for at least one year in the three preceding years, in a “managerial” or “executive” capacity
- a. aliens with extraordinary ability in the arts, sciences, education, business or athletics
- Group 2 (the “E2” category). Professionals Holding Advanced Degrees (or equivalent) and Aliens of “Exceptional Ability” (40,000) (usually requires a Labor Certification)
- “advanced degree” means a degree above a Bachelor’s Degree.
- a Bachelor’s Degree together with at least five years of progressively responsible experience may be deemed the equivalent of an advanced degree.
- an applicant seeking Group 2 classification without an advanced degree must establish “exceptional ability”, which requires, among other things, at least ten years of experience in the job offered.
- Although this category usually requires a Labor Certification, this may be waived by the Attorney General if shown to be in the “national interest”; such factors as improving the U.S. economy; improving the wages and working conditions of U.S. workers; improving education and training programs for U.S. children and under qualified U.S. workers; improving health care; providing more affordable housing for young and/or older poorer Americans; or improving the environment of the U.S. and making more productive use of natural resources may be considered.
- Group 3 (the “E3” category). Skilled Workers, Professionals Holding Basic Degrees, and “Other Workers” (40,000) (always requires a Labor Certification)
- a.Skilled workers who have at least two years training or experience, not of temporary or seasonal nature, for which qualified workers are not available in the U.S.
- b. professionals with a Bachelors Degree
- c. other workers, including unskilled labor (limited to 10,000 of the total 40,000 allocated to Group 3) not of temporary or seasonal nature, for which qualified workers are not available in the U.S.
- Group 4. Special Immigrants (10,000)
- Ministers and religious workers
- Group 5. Employment Creation (10,000)
- Requires $1 million investment leading to employment of at least 10 U.S. workers in a newly created enterprise (after the enactment of the Immigration Act of 1990), or 500,000 investment if business located in a high unemployment area (3,000 of the total 10,000 reserved for these investors
3. REFUGEE/ASYLUM BASED IMMIGRATION
- Must prove a “well-founded fear of persecution” on account of (1) race (2) religion (3) national origin (4) political opinion (5) membership in a particular social group
- Persons outside the U.S. seeking entry apply at U.S. Consulates or INS offices abroad and if approved will be authorized to enter the U.S. as a refugee
- Persons within the U.S. fearing persecution apply at INS offices and if approved are granted asylum status
4. DIVERSITY BASED IMMIGRATION
The permanent diversity program (known as the “Visa Lottery”) has been in place since October 1, 1994, providing LPR status for natives of geographic areas which have traditionally been underrepresented in U.S. immigration patterns. Diversity immigrants do not require family or employment sponsorship, but must possess specified minimum education or job skills.
The worldwide level of diversity immigrants is equal to 55,000 for each fiscal year.
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Membership in associations which require outstanding achievement of their members
- Published material about the applicant relating to the applicant’s work in the field for which classification is ought
- Participation on a panel, or individually, as a judge of the work of other in the field of specialization
- Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field
- Authorship of scholarly articles in the field
- Evidence that the applicant has commanded a high salary or other significantly high remuneration for services in relation to others in the field
- Evidence that the applicant has performed in a leading or critical role for organizations or establishments that have a distinguished reputation
(note: BCIS regulations provide additional criteria which are unique for artists or performers: evidence of display of the applicant’s work in the field at artistic exhibitions or showcases). If the above standards do not readily apply to the applicant’s occupation, the petitioner may submit comparable evidence to establish eligibility.
List of Documents Required for Extraordinary Ability Petition
- A brief (2-3 page) narrative summary of your education, training, and work experience highlighting your significant research interests and accomplishments. This information will be incorporated in the draft of the principal supporting letter which we will ask your supervisor or faculty sponsor to sign.
- A brief description of the activities of the department or division in which you are conducting research, including such information as number of faculty, amount and source of funding, principal research accomplishments and focus
- Copy of Curriculum Vitae, including a list of publications
- Copies of several of your publications
- Copies of all advanced degree diplomas or certificates
- Copies of any relevant documents such as the following: invitations to speak at meetings or review articles for publication, memberships in professional associations, patent information, confirmation of receipt of awards, honors, or scholarships, citation listings for your publications from professional indexes, and any magazine or newsletter articles which mention you or your work.
- Supporting letters from experts both inside and outside the U.S. in accordance with the guidelines provided
- Copies of passport and H-1 or J-1 visa documentation
- Copies of birth and marriage records (if applicable)
- Translations of any foreign language documents
- That he or she is offered a tenured or tenure-track teaching position at a U.S. college or university, or a permanent research position at a research institution (“permanent” in this context means that the employee has an expectation of continued employment unless there is good cause for termination);
- That the U.S. employer normally employs at least three people full time in research, and has achieved documented accomplishments in an academic area;
- That he or she has more than three years teaching and/or research experience (ordinarily accrued after obtaining a doctoral degree, although no particular degree is specifically required!);
- That he or she is recognized internationally as outstanding in the particular academic field.
Evidence that the alien is recognized internationally as outstanding must consist of at least two of the following:
- (a) Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
- (b) Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
- (c) Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material;
- (d) Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
- (e) Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
- (f) Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
U.S. Citizenship and Immigration Services (formerly INS) has identified the following items as generally of little or no value: a book published by a “vanity press”; a footnoted reference to the alien’s work without evaluation; an unevaluated listing in a subject matter index; a negative or neutral review of the alien’s work. On the other hand, the following items are considered solid pieces of evidence: peer-reviewed presentations at academic symposia; peer-reviewed articles in scholarly journals; testimony from other scholars on how the alien has contributed to the academic field; entries, particularly a “goodly number”, in a citation index which cites the alien’s work as authoritative; participation by the alien as a reviewer for a peer-review scholarly journal; evidence that the alien has provided thesis direction at the Ph.D. level. *** Individuals with less than three years of teaching and/or research experience since obtaining their Ph.D, may count research experience gained during their graduate studies toward the three-year requirement if the research is recognized as outstanding, as evidenced in international publications and conference presentations.
List of Documents Required for the Outstanding Professor or Researcher Petitions
- Brief (1-2 page) narrative summary of your education, training, and work experience highlighting your significant research interests and accomplishments. This information will be incorporated in the draft of the principal supporting letter, which we will ask your supervisor or faculty sponsor to sign.
- A brief description of the activities of the department or division in which you are conducting research, including such information as number of faculty and staff, amount and source of funding, principal research accomplishments and focus
- Copy of your Curriculum Vitae, including a list of your degrees, publications, conference presentations, memberships, and awards and honors
- Copies of all advanced degree diplomas or certificates
- Copies of your publications
- Copies of any relevant documents such as the following:
- Invitations to speak at meetings
- Invitations to review grants or articles for publication,
- Memberships in professional associations,
- Patent information,
- Confirmation of receipt of awards, honors, or scholarships,
- Citation listings for your publications from professional indexes,
- And any magazine or newsletter articles which mention you or your work.
- Supporting letters from experts both inside and outside the U.S. in accordance with guidelines we will provide
- He or she must have been employed abroad by the petitioner (or its parent, subsidiary or affiliate firm) for at least one year during the preceding three years (or, for one year during the three years which preceded entry to the U.S. in temporary worker status);
- An alien currently in the U.S. (usually in “L” or “E” status) satisfies the one year employment abroad requirement if he or she met this requirement at the time of initial entry to the U.S.
- The employment abroad must have been “managerial” or “executive” in nature;
- The employment offered in the U.S. must also be “managerial” or “executive” in nature.
Priority Worker status is especially attractive for several reasons. Qualified applicants are given first consideration for the issuance of “visa numbers” under the quota system. This factor, coupled with a large increase in the employment-based immigration quota, should mean the absence of any significant waiting list for the foreseeable future. Unlike the corresponding classification under prior law, it is irrelevant whether the applicant possesses a university degree. The concept of “managerial capacity” has been broadened to include those who manage a “function” rather than focusing on the number of employees managed. Finally, the one year prior employment need not take place during the immediately prior year, but at any time during the preceding three years. This will permit a valued employee who may have interrupted employment with the petitioning firm for some time to apply.
Upon approval of a Priority Worker Immigrant Visa Petition (Form I-140), the applicant and any accompanying family members (spouse and children under the age of 21) can:
- Apply for an immigrant visa at the American Consulate in their home country, or
- If in the U.S., apply for Adjustment of Status through an INS Service Center. Upon acceptance of the Application, the applicant and spouse can be granted “employment authorization”, thereby allowing the dependant spouse to work in the U.S. while the Application is pending, in any desired occupation. Final approval of an Adjustment of Status Application is now taking twelve months, or longer.
The terms “managerial capacity” and “executive capacity”, are defined by the Immigration and Naturalization Service as follows:
- “Managerial Capacity” means an assignment within an organization in which the employee primarily:
- Manages the organization, or a department, subdivision, function, or component of the organization.
- Supervises and controls the work of the other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization.
- Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization ) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed.
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
- “Executive Capacity” means an assignment within an organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization.
- Establishes the goals and policies of the organization, component, or function.
- Exercises wide latitude in discretionary decision-making, and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
National Interest Waivers
Because the National Interest Waiver may only be solicited by an applicant who is qualified for the Second Employment-Based Immigrant Category (the “E2” category), he must possess an “Advanced Degree” (or equivalent), or be a person of “Exceptional Ability”.
- “Advanced degree” means a degree above a Bachelor’s Degree.
- A Bachelor’s Degree together with at least five years of progressively responsible experience may be deemed the equivalent of an advanced degree.
- An applicant seeking E2 classification without an advanced degree must establish “exceptional ability”, which requires, among other things, at least ten years of experience in the job offered.
The term “national interest” was not defined in either the immigration statute or the INS regulations. However, a leading INS decision established the following guidelines to be used in adjudicating these petitions. The decision states that “national interest” may be found where the continued employment of the beneficiary will contribute to:
- Improving the U.S. economy, or the wages and working conditions of U.S. workers;
- Improving education and training programs for U.S. children and under qualified U.S. workers;
- Improving health care;
- Providing more affordable housing for young and/or older poorer Americans;
- Improving the environment of the U.S. and making more productive use of natural resources.
These factors are illustrative only. Other comparable evidence of the benefits that will accrue to the U.S. may be considered.
However, through the designation of a particular case as a precedent decision (Matter of New York State Department of Transportation (NYSDOT)), the INS has indicated that it is following much stricter guidelines in adjudicating National Interest Waiver petitions. Several factors will now be considered when evaluating these petitions. The revised guidelines are as follows:
- It must be shown that the alien seeks employment in an area that will substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. However, a petitioner cannot establish qualification for a National Interest Waiver based solely on the importance of the beneficiary’s occupation or field. These cases will require that the emphasis rest with the overall value and potential of the beneficiary’s individual contribution to the U.S. – not the fact that he or she is working in a field of “high national interest.”
- It must also be shown that the proposed benefit will be national in scope.
- It must be established that the beneficiary will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the beneficiary’s qualifications, since the labor certification process might reveal that an available U.S. worker has those qualifications as well.
The following are representative of the kinds of documentation which might support such a petition:
- Supporting letters from substantial recognized government agencies, cultural institutions, and national/international organizations with expertise in the field of question, which specifically mention the alien and explain why his/her work is in the national interest.
- Articles in major publications about the alien which denote critical acclaim or substantiate the high repute of the individual
- Critically acclaimed published books or articles where the alien is the primary or first author
- Secured patent(s) with evidence that the patented product, process, or innovation is actually being sold, used, or applied in the field
- Evidence that the alien is the head or “critical member” of a team working on a project of genuine national interest
- Evidence that the alien’s individual project is funded by a grant from a governmental agency or major scientific organization where the alien is listed in funding documents as the principal investigator. If evidence of this nature is submitted, it should be accompanied by a letter from the funding agency or organization clearly explaining how the project is in the national interest.
List of Documents Required for National Interest Waiver Petition:
- A brief description of the activities of the department or division in which you are conducting research, including such information as number of scientists, amount and source of funding, principal research accomplishments and focus
- A description of the importance of the work in terms of its importance to the “national interest,” including the important role you are playing in this effort
- A brief (2 or 3 page) narrative summary of your education, training, and work experience highlighting your significant research interests and accomplishments
- Copy of your Curriculum Vitae including list of publications
- Copies of publications
- Copies of all advanced degree diplomas or certificates
- Copy of any relevant documents such as the following: invitations to speak at meetings or review articles for publication, memberships in professional associations, patent information, confirmation of receipt of awards, honors, or scholarships, citation listings for your publications from professional indexes, and any magazine or newsletter articles which mention you or your work.
- Supporting letters from colleagues both inside and outside the U.S. in accordance with the guidelines provided
- Copies of passport and H-1 or J-1 visa documentation
- Copies of birth and marriage records (if applicable)
- Translations of any foreign language documents
- That the applicant is offered a permanent position and a competitive salary for that position;
- That this position requires an individual of “exceptional ability” in the alien’s field of expertise;
- That the applicant has been working in this field for at least one year prior to filing the application;
- That the applicant intends to continue to work in this field in the United States;
- That the applicant has achieved widespread acclaim and international recognition for exceptional achievement in his or her field of endeavor.
As defined by U.S. Citizenship and Immigration Services, evidence of exceptional ability and achievement must include at least two of the following:
- proof that the applicant has received internationally recognized prizes or awards for excellence in his field.
- proof of membership in international associations which require outstanding achievement for membership.
- published material about the applicant in professional publications.
- proof of the applicant’s participation on a panel, or individually, as a judge of the work of others.
- proof of the applicant’s original scholarly or scientific research of major significance.
- proof of authorship of published scientific or scholarly articles in international journals.
Importantly, a Schedule A, Group II petition does not require the following:
- Testing the labor market by advertising this position outside the applicant’s workplace;
- Submitting a Labor Certification form to the Department of Labor for approval before filing with U.S. Citizenship and Immigration Services.
However, in considering this option, it is important to remember that there are several requirements unique to filing a Schedule A, Group II Petition:
- The Payment Requirement: as specified by the Department of Labor, the employer must—at a minimum—pay for the portion of the legal costs associated with preparing the Labor Certification form.
- The Prevailing Wage Requirement: the employer must obtain a determination from the Department of Labor demonstrating that a competitive salary is being offered for the position.
- The Posting Requirement: notice must be posted on the premises of the employer and in any relevant in-house media services for a specific period of time before the Petition can be filed with the Immigration Service. Alternatively, the posting should be given to a company bargaining representative, if appropriate. This posting will contain specific information about the applicant’s salary.
Please note that approval of the petition will qualify the Applicant for classification in the E2 preference category under the quota system. The category is current for most Applicants but is backlogged for natives of mainland China and India.
PERM Labor Certification
Aliens seeking Lawful Permanent Resident (“Green Card”) status in the U.S. on the basis of an offer of employment must first have their employer, or prospective employer, obtain a Labor Certification (LC) on their behalf. Labor Certification is appropriate only if the employer expects to employ the alien beneficiary permanently or indefinitely, rather than for a fixed, temporary period of time.
A Labor Certification is a finding made by the Certifying Officer of the Department of Labor. To qualify, the employer must demonstrate that he is unable to locate a U.S. worker who meets the minimum qualifications for the position while offering prevailing wages and working conditions. The term “U.S. worker” includes both U.S. citizens and Resident Aliens. This is accomplished by “testing” the labor market in accordance with guidelines mandated by the Labor Department. Strict compliance with every aspect of the regulations is required.
Preparing an Application for Labor Certification
An Application for Labor Certification must be prepared with great care to insure that the job requirements are fairly and accurately stated. The Application is filed electronically after specific recruiting efforts have been conducted and the employer has demonstrated that no qualified U.S. worker was identified. The Application is signed by both the employer and alien beneficiary before the Application is filed electronically with the Department of Labor.
Minimum Job Requirements
DOL will scrutinize the minimum requirements set forth for the position very carefully to insure that they are reasonable, customary, and absolutely necessary to perform the job. They will object to any unnecessarily restrictive requirements, which appear to “tailor” the position to the alien beneficiary to the detriment of otherwise qualified U.S. workers.
Ordinarily, it is not acceptable to require experience or knowledge acquired by the alien beneficiary with the petitioning employer. DOL insists that the job be offered to U.S. workers on the same terms that it was originally offered to the alien beneficiary. In some cases, however, it is possible to require experience gained with the employer if either:
- Due to a change in circumstances, it is no longer feasible to offer the position on the same terms that it was originally offered to the alien beneficiary, or
- the alien was hired in or contracted to work in a different job for the employer, with proof that the job in which the alien gained the experience is not substantially comparable to the job for which certification is being sought. A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
The employer must offer to pay the “prevailing wage” to the alien. The prevailing wage is the amount paid by similar employers to U.S. workers who meet the minimum requirements for the position. DOL believes that if the employer is paying substandard wages, the labor market is not being properly tested. We submit all details for the job offer, including the job description, the minimum education and work experience requirements, any additional skill sets required for the position, and any travel requirements, to DOL for review. DOL will then evaluate the job details to issue a determination.
Two factors are involved in this determination:
- 1. Classification:
- The position “classification”, or a category for the position such as ‘Mechanical Engineer’ or ‘Software Developer, Applications’ included in DOL’s O*NET Database, is their assessment of how the particular job duties for the position offered can be classified. They take into account the minimum requirements for the position, the job duties, and the position title.
- We recognize that they have a limited number of classifications, and therefore DOL classifications are not always a perfect match. We are given the option of suggesting a classification on the prevailing wage request forms. We will discuss with the employer what classification from the O*NET Database best describes the job duties for the position so that we can guide DOL to an appropriate classification. DOL may or may not agree with our suggested classification.
- If we feel that the classification they issue is incompatible with the job offer, we can request that they reconsider. We have 30 days upon receipt of the prevailing wage determination to argue for reclassification.
- 2. Wage level:
- Each classification has four wage levels with a corresponding base salary. Wage Level I is generally reserved for entry-level positions, and is described by DOL as “beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment.” Wage Level IV is described as “competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques.” The levels in between are more difficult to distinguish. While we can make an educated guess based upon the minimum education and work experience requirements for the position offered, we cannot predict with certainty how DOL will evaluate the position until we submit for an official determination.
Alternate Wage Surveys
A private/alternate wage survey may be submitted if acceptable under DOL standards. The survey must comply with the following criteria. DOL will be most likely to accept an alternate wage survey which complies with all of these items:
- 1. Data on which the wage is based must have been collected within 24 months of the publication date of the survey
- 2. Published survey must have been published within 24 months of date of submission and it must be the most current edition of the survey
- 3. Survey must represent similar jobs in the area of intended employment – the area within normal commuting distance of the place (address) of intended employment (this is generally the “Primary Metropolitan Statistical Area (PMSA) for a given area
- 4. Survey’s job description must match the job description contained in the prevailing wage request
- 5. Wage data must be ‘Cross Industry’; in other words, survey must have been collected across industries that employ workers in the occupation
- 6. Survey should produce an arithmetic mean (weighted average) of wages for workers in the appropriate occupational classification in the area of intended employment; if the mean is not available, then the median can be used
- 7. Survey must identify a statistically valid methodology that was used to collect the data
We can review any surveys that your company has access to and let you know how closely the survey complies with DOL standards. Even a survey which we think has a high likelihood of being accepted may be rejected by DOL in their assessment of the job details and the survey data. If they do not accept the survey, they will assign wages based on their own data.
There are three required steps (advertisement in 2 Sunday editions of local newspaper/listing on state job bank for 30 days/posting notice on company premises for 10 consecutive business days). In addition to the three required steps, there must be three additional recruitment efforts made. Below is a summary of the necessary steps. Our intention is to follow your normal business practices through this recruitment plan as closely as possible while complying with all requirements established by DOL for a rigorous recruitment process.
Advertising must include:
- Two print ads in a Sunday edition of a mass circulation newspaper such as the Boston Globe, or one Sunday print ad in a newspaper and one journal ad
- Listing on the State Job Bank for 30 days (with another 30 day wait period after completed before filing any case)
- Posting a printed notice on company premises for ten consecutive business days
- Posting in any in-house media or intranet, if the employer uses such a system
- AND at least three additional types of recruitment based on the following list
- Job search website other than the employer’s Employer’s web site
- Employee referral program with incentives Job fairs On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertising
Review of Responses
DOL guidelines require that all potentially qualified applicants who surface as a result of the State Job Bank posting or the advertising campaign be reviewed in a timely manner by the employer. We recommend that employers contact applicants, if they appear to meet minimum requirements, within two weeks of receipt of resume. In addition, the employer must retain the resumes of all persons responding to the job posting together with reasons for rejecting those persons for the position. In the event of an audit by DOL, that information may be part of the documentation requested. Only “lawful job-related reasons” may be relied on to reject U.S. workers applying for the job opportunity.
When the applicant’s resume shows that he or she could not possibly possess the employer’s minimum requirements for the position, no interview need be conducted. An employer who rejects an applicant without an interview, however, must be able to justify the rejection of the applicant on the basis that the applicant does not meet its minimum requirements.
On the other hand, when the resume merely does not contain, with absolute certainty, the needed information to determine whether the applicant meets the stated requirements, further steps should be taken to inquire further with the candidate through interview. An employer must be careful in determining the appropriate dividing line between an ambiguous resume and one that shows that the applicant is unqualified.
The phone screen could either be used to verify that the applicant does not meet the minimum requirements, if at all unsure (this could be, for instance, if one cannot tell by the resume whether or not the applicant is authorized to work in the U.S.; a simple follow-up email could clarify this question), or, for resumes that show higher qualifications, the phone screen should be used to ascertain whether or not the applicant could be qualified. If the applicant appears qualified, a more in-depth phone or in-person interview is needed.
It is of course impermissible to tell a job applicant that the position is already filled by the alien, since the purpose of the recruitment is to locate U.S. workers to fill the position. However, it is permissible to tell a job applicant that no decision will be made until a date coinciding with the closing of the thirty-day job order period. If the applicant does not pursue the opportunity or is no longer available at the end of the thirty-day period, he or she will not be considered as an “available” U.S. worker.
The employer should keep notes on each telephone conversation and interview with a job applicant, as an issue of fact may later arise over what was said to the applicant, and whether the applicant was rejected for lawful reasons
The most acceptable reason for rejecting a job applicant is that the applicant’s training and experience does not match the minimum requirements specified by the employer. Other permissible factors that can lead to rejection of an applicant are the poor health of the applicant if the health situation would affect job performance or reliability, poor work references or references that cannot be checked, and the applicant’s lack of proficiency in the English language. Further review of employment and disability law with corporate counsel is also recommended in some situations.
When an applicant is rejected for one of the above reasons, the employer must state specifically the basis for the rejection. When submitting its report of recruitment results in the “Recruitment Report” at the time of filing, the employer will summarize its reasons for disqualifying all candidates.
Filing an Application for Labor Certification
The new procedure for filing Applications for Labor Certification electronically, in place as of 2005, is known as the PERM program (Program Electronic Review Management). The goal of the PERM program is to provide more expeditious and consistent handling of LC applications throughout the U.S. The final forms, called the ETA 9089 forms, include information about the employer and the job offered, the dates that each recruitment effort was conducted, information about the employee and how the employee qualified for the position at the time he or she was hired, and finally, information about the employee’s past work experience.
Since the application is submitted electronically, the form is in attestation form. No documentation will be sent with the Application. Instead, documentation of the unsuccessful recruiting effort must be compiled and maintained by the employer and made available to DOL upon written request or in the event of a DOL audit. With these measures we are prepared in the event that DOL requests this backup information if the case is chosen for an audit. Audit responses must be submitted to DOL within 30 days after we receive the notification. The employer is then required to submit all backup documentation collected throughout the case to DOL. It is impossible to predict, in most cases, which cases will be chosen for an audit. While most audits are random, some audit requests may outline specific reasons for having chosen that particular application.
DOL Processing Times
DOL processing times for these cases vary greatly and we will be happy to speak with you regarding the most recent trends at the time we file your case. Processing can take anywhere from a few weeks to six months or longer. If additional information is requested or an audit is conducted, processing times may go well beyond this estimate, as there is no provision in the regulations for response times required by DOL.
Costs Incurred in the Labor Certification Process
Under current law, the employer MUST bear all such expenses, including any legal fees incurred, related to the Application process. Other costs typically are limited to advertising expenses, and in some cases the cost of a private wage survey. The alien beneficiary cannot voluntarily assume or be required to pay such costs.
The ability to obtain a Labor Certification may be critical to an employer seeking to obtain or continue the services of a qualified alien employee, as well as to the alien beneficiary seeking to remain permanently in the U.S. Detailed procedures exist which must be carefully observed in order to accomplish this result. Interested employers should not be deterred by what may at first glance seem to be a bewildering array of obstacles, but should realistically assess the prospects for a successful resolution by seeking competent guidance.
We cannot guarantee that any Labor Certification application will be successful. Moreover, even if Labor Certification is obtained, other circumstances, including the passage of time, changes in the employment situation, or changes in the law, may make it impossible for the applicant to achieve his ultimate goal of obtaining Lawful Permanent Resident status.
Additional Steps After Labor Certification Approval
Once an application for labor certification has been approved, there are two additional steps required in order for an individual to obtain lawful permanent resident status; an I-140 immigrant visa petition is filed on their behalf by the employer, and, in some cases, the individual may file for adjustment of status (I-485), which is essentially the application for green card. There is an option for obtaining lawful permanent resident through consular processing abroad. Family members may also file their applications for adjustment of status along with the principal applicant, assuming that they are eligible to do so.
I-140 Immigrant Visa Petition: Once we have received an approved Labor Certification, the company can file the I-140 petition on behalf of the employee. It must be filed within 180 days of Labor Certification approval. It typically takes around 4 to 6 months for the I-140 to be adjudicated, but processing times may change without notice. This step can be expedited (“premium processed”) for a 15-day turnaround for an additional fee to the government. We usually do not recommend this unless an H-1B extension, if needed, would be approved for three years instead of one beyond the six year limitation, if the I-140 were to be approved prior to filing the extension request.
I-485/Adjustment of Status: Once the employee has an approved Labor Certification, some individuals may be able to file their I-485 application for adjustment of status along with the employer’s I-140 immigrant petition filing. This is possible as long as a visa number is available for the employee’s country of nationality and the employee’s employment classification (E3/E2). If the employee is not immediately eligible to file his/her I-485 along with the I-140, he/she may submit the I-485 as soon as visa numbers become available. The employee can find out when his/her priority date will become current by going to this website: www.travel.state.gov. Go to the “Visas” tab and look under “Visa Bulletin”. Note that these dates fluctuate from month-to-month, as visa numbers are always changing.
Faculty Search PERM
- The applicant is selected for the job as a result of a competitive recruitment and selection process; and if
- he/she is found to be more qualified than any U.S. workers who applied for the position, and
- the Application is filed within eighteen months of his/her “selection.”
In order to take advantage of this process, the following documentation must be prepared to support the Application, in the event it is selected for audit by the Department of Labor:
- 1. A statement which will be signed by an official with “actual hiring authority” which includes the following information:
- a. a complete description of the recruitment procedure, including information about advertisements placed and the nature of other steps taken in the attempt to fill the position;
- b. the total number of applicants responding;
- c. the specific, lawful, job-related reasons why the applicant is more qualified than each U.S. worker who applied for the position;
- 2. A final report of the Search Committee which recommended the selection of the Applicant at the conclusion of the search.
- 3. A copy of at least one advertisement for the position in a national professional journal.
- 4. Evidence of all other recruitment sources utilized.
- 5. A written statement describing the academic background and qualifications of the Applicant.
Our office will draft the statements described in paragraphs (1) and (2) once we have been supplied with the information documenting the search. We will also draft the Application For Labor Certification (Form ETA 9089) for review by the employer before it is filed electronically with the Department of Labor.
Faculty Search Labor Certification Checklist
In order to prepare the necessary paperwork to file a Labor Certification based on a Faculty Search we need the following documents and information:
- Job Description/Requirements
- The specific academic subject matters the applicant will be expected to teach and conduct research in.
- A brief statement of the requirements (degree-experience-special expertise) sought for this particular position.
- Period of time in which the search took place.
- Names of any publication (and date of publication) where the advertisement appeared (a copy of at least one advertisement placed in a professional publication must be provided)
- Name, date, and location of any professional conferences or career fairs where recruiting took place.
- Whether a “search letter” was sent to appropriate institutions and if so, approximate number of letters sent.
- Any other recruitment steps taken.
- Name, title, and contact information (including email) of official designated to sign Labor Certification, Immigrant Visa Petition and other required forms.
- Name, title, and contact information (including email) of official with “actual hiring authority” who will sign main supporting letter (to be drafted by our office) which summarizes the overall search campaign.
- Name, title, and contact information (including email) of Chair of Search Committee.
- Names and titles of other faculty members serving on the Search Committee organized to recruit for this position
- Name, title, and contact information of a faculty member familiar with the individual who will be asked to prepare a brief letter discussing his qualification for the position.
- The total number of applications received for this position.
- Brief but specific reasons why each U.S. worker who applied for the position was deemed less qualified than the Applicant
- The number of finalists given “serious consideration” for the position. • The number of candidates ultimately interviewed for the position.
- A brief description of the interview/screening process for finalists.
- Date of job offer to applicant.
- Documentation Required from Employer
- Copies of advertisements
- Copy of search letter (if any)
Documentation Required from Applicant
- Copies of all educational documents (college and above), including diplomas, and transcripts if readily available. If diploma is not readily available, applicant must provide confirmation of completion of university degree from an authorized university or college official. Also, please provide translations for all pertinent foreign language document
- Copies of both sides of Form I-94 for yourself and any dependent family members
- Copies of I-20 (for F-1 students) and/or Forms IAP-66 or Forms DS-2019 (for J-1 Exchange Visitors)
- Copies of all passports (current and expired) for yourself and any dependent family members, including copies of any U.S. visas, visas for other countries, and entry and exit stamps
- Copy of any previously conducted formal credential evaluation • Copy of offer letter
- Copies of all previous Approval Notices (I-797 or I-171C)
- Copies of previous H-1B support letters (if available)
- Copies of any correspondence from the CIS, U.S. State Department, Labor Department, or U.S. Information Agency (USIA)
Adjustment of Status
Upon approval of a Labor Certification or filing of an I-140 Immigrant Visa Petition if taking advantage of “Concurrent Filing”, an individual may complete the immigration process in one of two ways:
- By applying for Adjustment of Status inside the U.S., through the CIS Service Center having jurisdiction over the applicant’s place of residence in the U.S. This procedure is only available to applicants who are in the U.S. and who meet certain additional requirements.
- By applying for an Immigrant Visa at the U.S. Consulate in the country of last residence; this procedure is available to applicants who are in the U.S. as well as those who are abroad. If the applicant chooses this method he/she is required to wait until the I-140 is approved before the Immigrant processing begins.
Please be advised that in light of the events of September 11th, and the continued uncertainty of security at consulates worldwide, we strongly recommend that eligible applicants seriously consider applying for Adjustment Of Status in the U.S.
Application for Adjustment of Status
An applicant who is currently residing temporarily in the U.S. may apply for adjustment of status through one of the four CIS Service Centers if it is an employment-based case.
All applicants must meet the following requirements:
- He/She must have a valid entry to the U.S. as a nonimmigrant, or as a parolee. This excludes those who entered the U.S. without inspection by crossing the border illegally, entered as transits without visas, or simply lack proof of entry.
- In addition he/she must not have worked in the U.S. without authorization, overstayed his/her authorized period of stay, or have other violations of status.
The are two important exceptions to the general rules which require applicants to be in lawful status:
- Employment based applicants who have been out of status or who have worked without authorization for a total of less than six months are still eligible (Section 245(k) of the Immigration and Nationality Act)
- Employment based applicants who have been out of status or worked without authorization for more than six months, who entered without inspection, or who simply lack proof of entry, AND whose Labor Certification or Immigrant Visa Petition (for cases which do not require a Labor Certification) were filed before April 30, 2001 AND who are willing to pay a $1,000 “penalty fee” with the application (Section 245(i) of the Immigration and Nationality Act).
Congress is currently considering legislation that would extend the April 30, 2001 cutoff date, but this change HAS NOT been enacted into law at this time.
The Adjustment of Status application may be filed with the I-140 Immigrant Visa Petition or with the receipt notice of the I-140 Immigrant Visa Petition (Form I-797 Notice of Action). The principal adjustment of status application contains Form I-485, together with Form G-325, I-181 and a few miscellaneous CIS forms.
Supporting documentation is generally the same as that required for an Immigrant Visa, with two important exceptions:
- Foreign police certificates are NOT required
- Military records are NOT required.
Furthermore, employment-based adjustment cases are now generally granted without an interview.
Current processing time for applications filed at the Vermont Service Center of CIS range from about 10-18 months. When considering processing times, it is essential to keep in mind the following:
- Processing times vary, without advance notice. Some cases in Vermont were taking two years or longer. Recently, we have experienced a reduction in processing times. This situation could be reversed in the future.
- Processing times vary at different CIS Service Centers.
- If a preliminary review of the application reveals apparent problems, an interview will be required. Some cases are randomly chosen for interview even if there are no obvious problems. Should an interview be necessary, the case will be transferred from the CIS Service Center to the CIS District Office. Those applicants who require an interview will be scheduled to appear in person.
- If an interview is not required, the applicant simply receives an approval notice in the mail indicating that he has been granted Lawful Permanent Resident status. He will then be instructed to report in person to a local CIS District Office for the taking of the Form I-89 fingerprint. The applicant may also, upon request, be issued the Temporary Form I-551 (“green card”) stamp that can only be placed in a valid passport.
Travel Abroad While Processing Adjustment of Status
Once the application is filed, the applicant’s travel abroad is somewhat restricted. Initially, the applicant is prohibited from departing from the U.S. at least until arrival of the receipt for the I-485 from the Service Center. This has been taking about four to eight weeks. To do so would constitute an abandonment of the application.
The procedures for obtaining Advance Parole vary considerably according to the CIS District where the applicant resides.
Additionally, applicants who possess valid H-1B or L-1 visas, and who are still maintaining status after the filing of an Adjustment of Status application, may reenter the U.S. upon presentation of the valid visa together with the CIS receipt for I-485, without having to obtain an Advance Parole document.
A significant benefit of applying for Adjustment of Status is that the applicant and accompanying family members may apply for and be granted Employment Authorization as soon as the Adjustment of Status application is filed. This will permit a spouse to be employed during the long wait for the final approval of the application. It is also particularly important for applicants whose nonimmigrant status is about to expire, and who is some cases cannot obtain additional extensions of stay (e.g. L-1 or H-1B applicants who are approaching the five or six year limitation on stay.
Adjustment of Status-Advantages
- Can file I-485 application concurrently with I-140 Immigrant Visa Petition or with the receipt notice of the I-140 Immigrant Visa Petition (Form I-797 Notice of Action).
- No need to travel abroad with entire family to attend visa interview at Consulate, possibly with limited notice.
- Police certificates and military records not required.
- Usually does not require any interview.
- If pending for more than six months, application becomes “portable” and applicant can move on to a different employer, providing he is still employed in the “same or similar occupation.”
- Ability to obtain “employment authorization” and “Advance Parole” for applicant and any family members upon filing of I-485.
Adjustment of Status-Disadvantages
- Many cases will take longer before the applicant is granted Lawful Permanent Resident status than if the applicant applied for an Immigrant Visa
- Travel abroad will be restricted for a short period of time upon filing of the Application (for residents of Massachusetts) and for a period of up to several months for residents in other parts of the country)
Application for an Immigrant Visa
If the applicant chooses to apply for an immigrant visa at the U.S. Consulate in the country of last residence, the Visa Petition will designate the location of the visa issuing post. Upon approval of the Petition, CIS will forward the paperwork to the National Visa Center (“NVC”) in Portsmouth, New Hampshire.
When the Petition is received at the NVC, the following steps are taken:
- Case data is entered into their computer system.
- In those cases in which there is no backlog or waiting list, the Petition is forwarded to the Consulate for further processing.
- The applicant is sent the Immigrant Visa Application accompanied by detailed instructions that must be followed to complete the immigration process. This is known as “Packet 3.”
- It has been taking about 4-8 weeks to receive Packet 3 following approval of the Immigrant Visa Petition.
Upon receipt of Packet 3, the applicant must do the following:
- Complete, sign, and return a Biographic Information Sheet immediately to the Consulate.
- Gather all the documents required for the personal interview.
- Furnish the Consulate with a separate, signed notice (OF 169) indicating that all documents have been assembled and that the applicant is ready for the interview. This is often sent together with the Biographic Information Sheet.
Documentation that applicant and each accompanying family member is expected to bring to the interview typically includes the following:
- A valid passport;
- Birth certificates of each applicant;
- Marriage, divorce, and adoption papers;
- Police certificates indicating that the applicant has no criminal record, from any country where he/she has resided for more than six months after the age of sixteen. No police certificate is required from the U.S.
- Military records, if the applicant has been in the military;
- Court records reflecting the disposition of any criminal charges in any country;
- A medical examination report, which may be completed only by a physician designated by the Consulate (Consulates normally send a list of physicians with the interview notice);
- An updated job confirmation letter (Employment-Based cases);
- Photographs which meet detailed specifications;
- Filing fees for the visa application.
The precise documents that an individual must furnish will vary from case to case depending upon a variety of factors. For example, police certificates are not available and therefore not required for residence in many countries.
Upon receipt of the applicant’s signed statement stating that all required documents are in his/her possession (the “Notice of Readiness” or OF-169), the Consulate will schedule the interview. Usually, several months will elapse before the interview is scheduled. The applicant usually receives about four weeks advance notice.
At the time of the interview, if there are no unexpected difficulties, each applicant will be issued an Immigrant Visa. The applicant will be allowed up to six months to use the Visa to enter the U.S. Upon entry, the Visa will be surrendered at the port of entry and the applicant will be admitted to the U.S. as a Lawful Permanent Resident (LPR). A “Temporary Form I-551” (green card) stamp will be placed in the passport. The stamp is normally valid for six months to one year, during which time CIS will manufacture and mail an actual “green card” to the applicant. The Temporary Form I-551 may be used to travel abroad and reenter the U.S. until the “green card” is received.
Immigrant Visa Processing-Advantages
- May take less time than filing for Adjustment of Status.
Immigrant Visa Processing-Disadvantages
- Cannot file an Immigrant Visa Application concurrently with I-140 application or with receipt of I-140 application
- Always requires a personal interview with entire family at the Consulate.
- Fairly short notice (four to six weeks) to arrange travel.
- Interview can be postponed but will likely delay case for several months.
- Police certificates and military records required.
- No concept of “portability” as in Adjustment cases; applicants must continue to have same job available with same employer at time of interview and return to the U.S.
- No ability to obtain “employment authorization” or “Advance Parole” for applicant and any family members while awaiting interview.
- While the vast majority of visas are issued on the day of the interview, any problems that do arise must be resolved while the applicant waits overseas.
- While the vast majority of visas are issued on the day of the interview, any problems that do arise must be resolved while the applicant waits overseas.
- Opportunity for legal representation to address problems at the Consulate is limited.
Which Way to Proceed?
Whether to apply for Adjustment of Status (if eligible) or process an Immigrant Visa application overseas is largely a matter of personal preference. Each applicant must carefully weigh the pros and cons of either approach. We stand ready to help each applicant arrive at the right decision.