Employment Permanent Visas

One of the ways a foreign national (alien) can become a permanent resident is through a permanent employment opportunity in the United States. There are five employment-based preference categories.

• First preference is for priority workers including persons of extraordinary ability, outstanding professors and researchers, and multinational organization executives and managers.
• The Second preference is for physicians, members of the professions holding advanced degrees, and persons of exceptional ability.
• The Third preference is for professionals, skilled and other workers, including nurses and physical therapists
• The Fourth preference provides for special immigrants including religious workers.
• The Fifth preference is an investor-related category, which grants permanent residency to persons who invest significant funds in the US and create 10 jobs for US workers

Under the various employment based categories, Category I based permanent residency is the most difficult to obtain. Initially, the foreign national must determine if he/she is eligible for lawful permanent residency according to the USCIS guidelines.

An applicant filing an EB1 alien of extraordinary ability application may self-petition, but an applicant filing under outstanding researcher and/or professor and multinational manager must have a sponsoring employer.

EB-1 Priority worker categories

• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;
• Foreign nationals who are outstanding professors or researchers; and
• Foreign nationals who are managers and executives subject to international transfer to the United States.

On March 28, 2005, the Department of Labor (DOL) implemented the current process for submitting Labor Certifications – the Program Electronic Review Management (PERM). PERM replaced the previous paper system know as Reduction in Recruitment (RIR). This is the first step for many employment-based green card cases and is required for applicants under category employment-based preference 2 or employment-based preference 3 (EB2 and EB3).

The purpose of a Labor Certification is for an employer to test the labor market to ensure that at any given point there are no willing and able U.S. workers or Permanent Residents available for an open position for which Labor Certification is being sought. By approving a PERM Petition, DOL has certified that no sufficiently-qualified US workers exist in the employment area to fill the open position at the time when recruitment is conducted. An employer may then proceed to file the immigrant petition for the foreign worker and hire a foreign worker (technically referred to as ‘alien’) on a permanent basis.

In order to file the PERM Petition, the following criteria must be met:

• Applications filed on or after March 28, 2005, must be filed using the new PERM process and adhere to the new PERM Regulations.
• The job opportunity must be for a full time, permanent position.
• A bona fide recruitment must be conducted for the job opening to try and recruit willing and able U.S. workers.
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

The PERM Petition can be filed through the online system or mailed to the DOL. Employers must be able to prove their business is incorporated and legitimate. The date the DOL receives the PERM Petition for processing is called the Priority Date, which will affect later stages of the Green Card process with the U.S. Citizenship and Immigration Service (USCIS). DOL reserves the right to audit any petition filed with a request for documentation, explanation of requirements or reasons why U.S. workers were not qualified. Once the PERM Petition has been approved, it has a validity period of 180 days in order to file the immigrant petition with the USCIS.

The following persons fall under this category:

• Foreign nationals of exceptional ability in the sciences, arts, or business;
• Foreign nationals that are advanced degree professionals; and
• Qualified alien physicians who will practice medicine in an area of the U.S., which is underserved.
• The EB-2 classification includes: aliens who are “members of the professions holding advanced degrees or their equivalent” (that is, any degree above a baccalaureate degree or a baccalaureate degree with at least 5 years of progressive experience in the professions) and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States. The services should be sought by the employer in the U.S.

If you are a worker with exceptional ability in the sciences, arts, or business, you may apply to waive the requirement that you have a job offer if such a waiver would be in the national interest.

The following criteria need to be met in order to qualify for a visa in this category:

• the person seeks employment in an area of substantial intrinsic merit;
• the benefit provided by the beneficiary will be national in scope (serving a regional, local or private interest will not be sufficient); and
• the national interest would be adversely affected if a labor certification were required, i.e. the benefit derived from the particular alien’s unique skills in the national interest field of endeavor must considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process. The national interest exemption must be significantly higher than that required to establish prospective national benefit required for all persons seeking exceptional status.

To be exempt from the job offer requirement, the USCIS must determine that an exemption would be in the national interest. A labor certification is not required if a national interest waiver is granted.

Qualified alien physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved may also qualify for this classification.

EB-3 Classification is appropriate for:
Professionals with a baccalaureate degree (or foreign equivalent degree but not necessarily any experience);
Skilled Workers with at minimum two years of experience (there is no degree requirement); and
Unskilled Workers who have less than two years of training or experience.

With two exceptions, EB-3 Visa applicants are required to obtain a Labor Certification, called a PERM (Program Electronic Review Management) from the U.S. Department of Labor (DOL). The two exceptions are for Nurses and Physical Therapists, as the DOL has determined there are not sufficient U.S. workers who are able, willing, qualified, and available to fill all of the available physical therapist and nurse jobs.

The reason for the Labor Certification is that a company is not allowed to hire a foreign worker if a “U.S. worker” is qualified and available to do the job. In the application for a Labor Certification, the prospective employer must certify that it has tested the labor market to ensure that, at any given point, there are no willing and able U.S. citizens, Green Card holders, and asylees available for the open position for which Labor Certification is being sought. By approving a PERM Petition, DOL certifies that no sufficiently qualified U.S. workers (U.S. citizens, Green Card holders, and asylees) exist in the employment area to fill the open position at the time when recruitment is conducted. The employer may then proceed to file the immigrant petition for the foreign worker and hire the foreign worker (technically referred to as “alien”) on a permanent basis.

The EB-5 category requires an investment of $500,000 to $1,000,000 in a new commercial enterprise that will benefit the US economy and produce ten full time jobs for workers unrelated to the EB-5 petitioner. (In certain circumstances the purchase or expansion of an existing business may qualify.) Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.
Immigrant Investor Regional Centers
Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

A “Regional Center”

• Is an entity, organization or agency that has been approved as such by the Service;
• Focuses on a specific geographic area within the United States; and
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. “Alien investors” must
• Demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center; and,
• T▪ Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

Once the EB-5 petition is approved, the investor becomes a conditional resident for two years and once the conditions are removed, a permanent resident.

One of the ways a foreign national (alien) can become a permanent resident is through a permanent employment opportunity in the United States. There are five employment-based preference categories.

• First preference is for priority workers including persons of extraordinary ability, outstanding professors and researchers, and multinational organization executives and managers.
• The Second preference is for physicians, members of the professions holding advanced degrees, and persons of exceptional ability.
• The Third preference is for professionals, skilled and other workers, including nurses and physical therapists
• The Fourth preference provides for special immigrants including religious workers.
• The Fifth preference is an investor-related category, which grants permanent residency to persons who invest significant funds in the US and create 10 jobs for US workers.