Employment based immigration is our specialization. There are may ways by which one can obtain permanent residence, each with its own requirements. The below is a brief overview and not a complete picture of what may be explored in this category.
First Preference Options (EB-1)
- Individual of Extraordinary Ability
- Outstanding Professors and Researchers
- Certain Multinational Executives and Managers
Second Preference Options (EB-2)
- National Interest Waivers
- Labor Certifications for Professionals with Advanced degree or equivalent
Third Preference Options (EB-3)
- Labor Certification for Professionals with a Bachelor’s degree or equivalent
- Skilled workers (2 years of experience)
- Other workers (unskilled workers with less than 2 years of experience)
Fourth Preference Options (EB-4)
- Special Immigrants (Religious Workers)
Fifth Preference Options aka EB-5
- Employment Creation (Investor visas)
EB-1 Extraordinary Ability
The EB-1(1) category applies to persons of extraordinary ability and does not require a job offer, nor a labor certificate, however the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Extraordinary ability is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” The USCIS’s final merits determination will consider evidence whether or not petitioner has demonstrated: (1) a level of expertise indicating that the individual is one of the small percentage who has risen to the very top of their field of endeavor and (2) that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. As part of the final merits determination, the quality of the evidence is considered, such as whether the scholarly articles are cited by others in the field. Whether other well recognized individuals/experts in the field consider the individual to be among the small percentage who have demonstrated sustained national or international acclaim.
National Interest Waivers
Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. To qualify you must meet 3 of the following criteria:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
In addition to providing evidence of an advanced degree or exceptional ability you must also meet the 3 National Interest Waiver criteria below in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor.
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
An Outstanding Researcher must demonstrate international recognition for outstanding achievements in a particular academic field. They must have at least three (3) years of experience in research in the field. Outstanding researchers require employer- sponsorship with an employer who has at least three full-time researchers and has also documented accomplishments. The researcher must additionally meet at least two (2) of the six (6) criteria listed for the following:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the alien’s work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
Labor Certification Process
The labor certification process is also known as the “PERM” labor certification process and “PERM” is the DOL’s acronym for “Program Electronic Review Management System.” The labor certification process is an Employer’s test of the labor market through various recruitment steps as mandated by the DOL. The recruitment phase spans a minimum of 60 days. Once these recruitment steps are completed, the Employer may file the labor certification with the DOL only if the Employer is able to state that Employer is unable to find a qualified, able and willing United States worker based on its recruitment efforts.
If a qualified, willing, and able U.S. worker is found, the company is not obligated to hire the qualified applicant. However, the labor certification may also not move forward. The DOL could not certify a position as open and available to a foreign worker if the labor market reflected available U.S. workers.
Basic Requirements for any Application:
- Full Time Employment: The PERM labor certification position must contemplate full-time employment by the Employee (not part-time)
- Permanent Offer of Employment: The PERM labor certification must list an offer for a Permanent position (not a temporary or seasonal position)
- Minimum Requirements: The educational and experience requirements listed in the PERM labor certification must reflect the Employer’s minimum requirements for the position and bear a rational and reasonable relationship to the duties of the position. These requirements cannot be unduly restrictive and cannot be tailored to the background of the Employee
- Wage: Upon permanent residency approval, the Employer must pay the Employee at least the prevailing wage as determined by the State Workforce Agency of the intended worksite. The intended salary is listed in the PERM labor certification and is “locked in” as the minimum salary for these purposes.
Younossi Law handles hundreds of PERMs for a very diverse range of positions each year and would be happy to provide you with an assessment of options for this type of filing.