Employment Immigration

PERM Labor Certification

Lawful permanent residence is not to be confused with U.S. citizenship, as it is still an immigrant status. It permits a foreign individual to live and work in the U.S. permanently through the means of sponsorship by completing three levels of approval: the immigrant worker petition, labor certification, and either processing from a consulate abroad or a status adjustment to “permanent”.

“PERM”, despite common assumption, is not a nickname for “permanent” but an acronym: “Program Electronic Review Management”. As it replaces the older Reduction in Recruitment (RIR) process, PERM is still new and very complex to complete. An experienced immigration attorney can mitigate the difficulty of the process and help you complete the process in a timely fashion.

The PERM process describes the pursuit in achieving an employment-based immigrant visa, also commonly known as a green card. There is a stress on the fact that a foreign individual would only qualify for permanent residence if no U.S. worker was readily willing or available for the job, even if the U.S. workers are minimally qualified for the job. However, a temporary visa holder working in the U.S. may reapply for the PERM Labor Certification to be approved at a later date.

Extraordinary Ability (EB-1)

This visa pertains to extraordinary individuals who have risen to the top of their respective fields through outstanding demonstration and achievement. Typically, the thin category refers to the upper 5% of a field, classifying an individual as a true expert in an endeavor. First, an applying individual must exhibit an extraordinary talent in fields such as education, arts, sciences, athletics or business, as proven by national or international approbation and “extensive” documentation. Second, the applying individual must hold the intention to continue his or her work in that area of expertise. Third, all signs must point to the individual furthering the state of the U.S. in respect to the field. Luckily, one need not have an actual employment offer prior to filing.

The requirements for an EB-1 visa are very similar to the temporary O-1 visa for Athletes, Entertainers and Artists:

  • Proof of a national or international award or prize displaying excellence in the field;
  • Publication praising the individual in a professional publication or major media;
  • Published work in a scholarly journal or major media in the field;
  • Being employed by a reputable organization in which an individual’s participation is essential to operations;
  • Original, documented contributions to business, science or scholarly fields;
  • Exclusive membership in an organization that requires superior achievement as a part of membership, as evaluated by legitimate experts;
  • An official judge or part of a panel of judges who evaluate the efforts of others in the field;
  • Proof of either a high salary or other compensation for skills in the field;
  • Tangible and noted success in the performing arts or showcases and exhibitions of art;
  • Past performance for a reputable organization in a cultural capacity or leading role;
  • Other evidence of outstanding achievement in the field.

Professors & Researchers (EB-1)

An individual must have a job offer from a U.S. employer before applying for the EB-1 visa, but there is no need for the employer to prove that there is a lack of U.S. workers as the individual is not applying simply for labor. To qualify for the EB-1 visa, you must fulfill the requirements on the list below:

  • There must be proof that the professor or researcher is extraordinary, which can be fulfilled by any two points on this list, although more requirements may be necessary:
    • Proof of a national or international award or prize displaying excellence in the field;
    • Publication praising the individual in a professional publication or major media;
    • Published work in a scholarly journal , circulated book, or major media in the field;
    • An official judge or part of a panel of judges who evaluate the efforts of others in the field;
    • Original, documented contributions to business, science or scholarly fields.
  • The applying individual must have at least three years in his or her respective field as a professor or a researcher;
  • The U.S. employer cannot hire an individual for a temporary position (it must either be tenure, en route to tenure, or with an unspecified, indefinite amount of time);
  • There must be at least three other individuals researching in the company if it is a private sector, and there must be documentation regarding the sector’s accomplishments in the field.

Managers & Executives (EB-1)

Those applying for an EB-1 visa for managers and executives may bypass the labor certification process if they qualify, as long as they meet the requirements outlined in the Immigration and Nationality Act. This means that there is no need for an applying individual or the U.S. employer to prove that there is a lack of U.S. workers to fill the job position. However, there are criteria that must be met before filing a change of status to permanent residency:

  • You are required to have been employed for at least one year within the last three years by either the petitioning firm, a branch or subsidiary of the firm, or connected legal entity;
  • You must be planning to continue working for the petitioning firm after gaining permanent U.S. residency as either a manger or executive.

However, there is no need for the applying individual to display outstanding achievement in a specified field for the EB-1 visa.

Here are the requirements for filing as a manager under the EB-1 visa:

  • You manage a department, subdivision, whole organization, or a specific function;
  • You have official supervision over other employees who either manage, supervise, or hold another hierarchy in the organization;
  • If you don’t have direct supervision, you function at a senior level and you have hiring and firing rights;
  • You are in an active managerial role on a daily basis as you oversee operations and functions.

Here are the requirements for filing as an executive under the EB-1 visa:

  • You institute company goals and policies;
  • You direct the managers or a function of the company;
  • You make instrumental overall decisions;
  • You only receive a higher supervision of your work from shareholders, a board of directors or higher-level executives.

Your eligibility will be determined on factors including the fulfillment of the requirements, the needs of your organization or function, and the organization’s current stage of development.

Adjustment of Status

An Adjustment of Status is the process in which a foreign national may switch from a temporary immigration status to permanent residence while in the U.S., as long as he or she has been inspected, paroled, or actually admitted and is applicable for a green card in one of the designated categories. An alternate to an Adjustment of Status is called a Consular Processing, in which a foreign national who is either outside the U.S. or in the U.S. and unable to adjust a status can get his or her visa abroad instead.

In addition, a foreign national who seeks an Adjustment of Status must have a visa number when filing for the change, be eligible to adjust, and submit the application in a timely fashion. Sometimes, an interview is required after filing, but it is not applicable in cases such as children or spouses of U.S. citizens or an employment-based visa. In an interview, a decision will most likely be made in the interview itself.

Consular Processing

Of the two methods of switching an individual’s status from temporary to permanent, Consular Processing is best suited for those who are either outside of the U.S. or unable to qualify for the visa change at the time while in the U.S. The first step to Consular Processing is knowing which visa status applies to you and your situation. For instance, will an employer or family member file a petition on your behalf, are you seeking asylum, or have you displayed extraordinary talent in a specific field? There are many different visas for future permanent residents in which at least one is bound to suit your needs.

In more time-sensitive situations, you may want to consider Consular Processing over an Adjustment of Status, as there are often delays at USCIS. Of course, the most common way to complete the Consular Process is to travel back to the original country of the foreign national, which can be a hassle for an individual who already has a temporary visa in the U.S.

The National Visa Center (NVC) carefully reviews all Consular Processing applications for accuracy and completeness, which is where the savvy services of a great immigration lawyer benefit the situation. It is the difference between moving along the application process immediately or having your priority date pushed far back.

Immigrant Investors (EB-5)

The main purpose for foreign nationals to apply for the EB-5 visa is to stimulate the U.S. economy by Congressional standards, and the prerequisites for this visa are surprisingly few in comparison to other visas. Here are some of the requirements for the EB-5 visa:

  • You must invest in a new commercial enterprise that employs at least ten U.S. workers or authorized immigrants while staying involved in the daily management and operations;
  • As of November 29, 1990, you must invest or be in the process of investing at least $1,000,000 (unless there is a special circumstance);
  • You must be an investor, not the founder or establisher of the enterprise;
  • You may use different forms of investment such as cash, inventory, equivalents, equipment, or even indebtedness that are secured by the assets of the investor if he or she is held liable, as long as the assets of the new enterprise are not used to secure indebtedness;
  • You must provide that the source of the invested funds are wholly legitimate;
  • There can be more than one investor, as long as you and other investors are not part of the petitioning party and all investors involved meet the employee and capital requirements;
  • Your investment must create at least ten new employee positions for U.S. citizens or immigrants, excluding yourself and your immediate family, within the two-year residency time. They must be employees, not independent contractors. Investing with the Regional Center allows you to bypass this whole process;
  • You must petition to have your conditional residency status removed within 90 days before the two-year anniversary of your status, displaying that the required capital was invested, that it was sustained, and that at least ten employee positions have been made or are expected.

A great benefit to the EB-5 visa is that the investor, along with his or her spouse and unmarried children who are under 21 years old may become at-will U.S. citizens in five years from the initiation of conditional status.