Lawful permanent residence (a green card) offers individuals many benefits, including the ability to live and work permanently in the United States
There are various classifications for employment-based and family-based immigration. Please click on the category that best suits your situation.
Individuals who have attained a high level of achievement and recognition in the fields of science, arts, education, business, or athletics may petition for permanent residence without first obtaining a labor certification. These petitions may be made by individuals on their own behalf, or by U.S. employers on behalf of an individual employee. To qualify as a person of extraordinary ability, the individual must show that he or she posses a level of expertise indicating that he or she is at the very top of his or her field. The petition is filed on Form I-140 with U.S. Citizenship & Immigration Services (USCIS). Extraordinary Ability based I-140 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case. Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.
In order to document a successful application under this category, the individual must provide evidence that he or she has sustained national or international acclaim that has been recognized by other top members in the field. This documentation requirement can be satisfied either by providing evidence that the individual has received one major international award (such as a Pulitzer Prize), or by showing at least three of the following 10 items:
- Documentation of the individual’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the individual’s membership in associations in the field or which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- Published material about the individual in professional or major trade publications or other major media, relating to the individual’s work in the field for which classification is sought;
- Evidence of the individual’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
- Evidence of the individual’s original scientific, scholarly, artistic, athletic, or business related contributions of major significance in the field;
- Evidence of the individual’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of the individual’s work in the field at artistic exhibitions or showcases;
- Evidence that the individual has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence that the individual has commanded a high salary or other significantly high remuneration for services, in relation to other in the field; or
- Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
While an individual may self-sponsor by filing an I-140 immigrant petition under the Extraordinary Ability category on his or her own behalf, he or she must nonetheless prove by clear evidence that he or she will work in the United States in the field under which classification is sought. This evidence may take the form of contracts, commitment letters, or a statement by the individual of his or her plans to work in the United States.
Upon receipt of an approved I-140 immigrant petition, an individual may obtain permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States.
Academic institutions or research organizations may apply for permanent residence status on behalf of professors and researchers with outstanding qualifications. While an approved labor certification need not accompany this application for permanent residence, the foreign national must have an offer of permanent employment with a U.S. educational or research organization that can prove its ability to pay the researcher’s salary. Unlike the Extraordinary Ability category, a person may not self-sponsor under the Outstanding Professor and Researcher category. Teaching positions used as the basis for this category of permanent residence petition must be tenured or tenure-track positions; research positions must be permanent, full-time positions. The petition is filed on Form I-140 with U.S. Citizenship & Immigration Services (USCIS). Outstanding researcher based I-140 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case. Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.
Two threshold requirements must be met to file a successful application as an outstanding professor or researcher. First, the petitioner-employer must either be a university or institute of higher education, or a private company that already employs at least three full-time researchers. Second, the professor or researcher must have at least three years of experience in teaching and/or research in the academic field.
In addition to the two threshold requirements, the application must demonstrate that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. To meet this requirement, the application must provide evidence consisting of at least two of the following six items:
- Documentation of the individual’s receipt of major prizes or awards for outstanding achievement in the academic field;
- Documentation of the individual’s membership in associations in the academic field that require outstanding achievements of their members:
- Published material in professional publications written by others about the individual’s work in the academic field;
- Evidence of the individual’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
- Evidence of the individual’s original scientific or scholarly research contributions to the academic field; or
- Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
In addition to presenting evidence bearing on at least two of these categories, the application must demonstrate that the individual researcher or professor has achieved international acclaim in his or her field.
Upon receipt of an approved I-140 immigrant petition, an individual may change to permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States.
Multinational Managers or Executives
Companies that have been established in the United States for at least one year and that are established in at least one other country may sponsor certain managers and executives for permanent residence without first obtaining a labor certification for the position.
To prove eligibility under the Multinational Manager and Executive category, the U.S. employer must file Form I-140 with U.S. Citizenship & Immigration Services (USCIS), with evidence that the sponsored employee worked for the company as a manager or executive outside the United States for at least one year during the three years preceding the filing of the petition. If the employee is already in the United States in valid nonimmigrant status, the petitioning employer must prove that the employee worked with the company abroad as a manager or executive for a full year during the three years immediately preceding the employee’s entry to the United States in legal status. In addition, the employer must show that a qualifying relationship existed between the employee’s foreign employer and the U.S. employer while the employee worked abroad. Finally, the employer must show that the employee has been offered a managerial or executive position with the company in the United States. Premium processing is not available for Multinational Manager or Executive based I-140 petitions.
To prove that an employee has worked or will work in a managerial capacity, an employer must show that the employee:
- Manages the organization, or a department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
- If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
- Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
To demonstrate executive duties, the employer must prove that the employee has performed or will perform the following duties:
- Directs the management of the organization or a major component or function of the organizations
- 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.
Qualifying Relationship Between Employers
The foreign employer and the petitioning U.S. entity must have a qualifying corporate relationship such that the transfer of the employee to the United States may be considered a transfer within a single company. The entities among which the employee transfers must have common ownership and control to qualify for use of the multinational manager or executive immigrant visa category. To prove this, the petitioning U.S. employer must show that it is the same company as the overseas employer or that it is the parent, subsidiary, or affiliate of the overseas employer.
PERM Labor Certification
Labor certification (also referred to by its acronym “PERM”) is the most common method by which a U.S. company sponsors a foreign national for permanent residence. The labor certification is the first step of a three-step permanent residence process. To obtain a labor certification, the sponsoring U.S. company must prove to the satisfaction of the U.S. Department of Labor (DOL) that, after reasonable recruitment efforts, it has been unable to locate a minimally qualified U.S. worker willing to accept the position.
Successful labor certification applications consist of two equally important processes: the careful drafting of application forms and the presentation of diligent recruitment efforts. The application forms are used to set forth information about the position being offered to the foreign national as well as information about the foreign national’s educational and work experience. The application must be drafted so that the position falls within the DOL’s accepted parameters in terms of job description, minimum education and experience requirements, and salary. The documentation must also show that the foreign national met the minimum requirements at the time the labor certification application was filed.
What is a labor certification?
When DOL issues an approved labor certification, it is certifying that:
- The employer has attempted to recruit and hire U.S. workers for the job. (The employer must run advertisements and other types of recruitment, and must be prepared to provide documentation of efforts to recruit, interview, and hire U.S. workers who are qualified and willing to accept the job.)
- The employer has offered a normal or prevailing wage for the job that will not adversely affect the wages of U.S. workers.
- The employer has not found sufficient qualified U.S. workers to perform the job. (Applicants who apply for the position are assumed to be qualified. The burden is on the employer to prove to DOL that they are not qualified and why they are not qualified.)
The mere filing, or even approval, of a labor certification does not confer any immigration benefit. It merely is evidence that there is a shortage of U.S. workers for a particular job in a particular geographic area. The labor certification:
- Does not guarantee permanent residence.
- Does not allow the foreign national to work.
- Does not allow the foreign national to remain in the U.S.
After the labor certification is approved, the company must file an I-140 Immigrant Visa Petition on behalf of the foreign national. With the I-140 the company submits evidence that the foreign national meets all of the requirements for the position on the labor certification and that the company had the ability to pay the wage offered in the labor certification from the time of filing the labor certification until the time of filing the I-140 petition. The company must continue to demonstrate its ability to pay until permanent residence is approved, which could be several years in some cases.
If the I-140 is approved, the foreign national can then file an I-485 Application to Adjust Status to Permanent Residence or can apply for an immigrant visa abroad. (If the visa priority date is current, the I-140 and I-485 can be filed together.) The foreign national does not become a Permanent Resident until approval of the I-485 or until entry into the U.S. on an immigrant visa.
Under PERM, employers file labor certification applications on Form ETA 9089, either electronically or by mail. No supporting documentation, such as recruitment and prevailing wage evidence, is filed with the Form ETA 9089. Instead, the employer must maintain such documentation for five years after the date of filing, and must submit it to DOL on request.
Prior to filing the application, employers need to obtain a prevailing wage determination through the Department of Labor Prevailing Wage Unit. The employer must offer to pay the foreign worker 100% of the prevailing wage as determined by the SWA.
PERM applications undergo a “sponsorship check” by DOL staff to ensure that the petitioning employers are valid entities that are actually conducting business. Then an automated review process checks whether the applications are complete, and applies certain review criteria to the applications to determine which applications should be the subject of a DOL audit. In addition, certain applications will be randomly audited.
A DOL audit under the PERM regulations consists of a letter setting forth the information that DOL would like to review before making a determination in the case. The employer is given only 30 days to reply to the audit. The processing times for PERM applications and PERM audits vary, but the Department of Labor maintains a fairly accurate assessment of current timeframes at their iCert website under the “PERM processing times” heading. The employer, foreign worker, and attorney of record must sign the certified application and retain a copy of the signed application. The original signed application will later be filed with an I-140 Immigrant Visa Petition with U.S. Citizenship and Immigration Services (USCIS).
In order for a company to file cases electronically under PERM, a person with actual hiring authority will need to register the company on DOL’s PERM website at www.plc.doleta.gov. While the registration usually is approved immediately, at times DOL will ask for additional information and documentation. This can extend the process for several weeks.
The PERM regulations require three specific forms of mandatory recruitment. This recruitment must be completed no more than 180 days and no fewer than 30 days prior to the filing of the PERM application:
- Two Sunday newspaper advertisements. The employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment. (A newspaper of general circulation is a newspaper where legal notices are typically published.) An employer may choose to run an advertisement in a professional journal instead of one of the Sunday newspaper advertisements if the position requires experience and an advanced degree, and if a professional journal would normally be used to advertise for the position.
The advertisements must contain enough specificity to apprise applicants of the job opportunity that is available. The ad need not contain a full job description, minimum requirements, or the offered salary. However, the ad must include the company name, general location, and contact information, including a mailing address so that applicants without computer access can apply. Employers may still choose to include a brief job description or job requirements in their ads, in order to minimize the number of unqualified applicant responses.
- Job order with the State Workforce Agency (SWA). The employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The job order requirements differ from state to state.
- Posted notice. The employer must post the job opportunity internally at the place of employment for 10 consecutive business days, not including any holidays or weekends, even if the employer is open on those days.
In addition, the employer must use any in-house media, whether electronic or printed, that it normally uses for recruitment for similar positions in the organization. For example, if the company’s practice is to post internal job opportunities on its intranet, then it should post PERM job opportunities in the same manner. In-house media recruitment must be posted for the standard time or for 10 consecutive business days, whichever is longer.
In addition to the two Sunday advertisements, the 30-day SWA job order, and the internal posting, employers recruiting for a “professional” position must perform three additional forms of recruitment from the list of options below. A “professional” position is an occupation for which a bachelor’s degree or higher is customarily required. The DOL regulations include a list of the occupations that are considered to be professional positions for the purpose of the following additional recruitment requirements:
- Job fairs
- Employer website
- Job search website other than the employer’s (under PERM, an internet ad generated in conjunction with a print ad will count for this purpose)
- On-campus recruiting (if the job requires a degree, but no experience)
- Trade journals or newsletters
- Contracts with private employment firms
- Employee referral programs with incentives
- Posting at a campus placement office (if the job requires a degree, but no experience)
- Local and ethnic newspapers
- Radio and television advertisements
All of the additional recruitment must take place during the 180 days prior to the filing of the PERM application. Only one of the forms of additional recruitment for professionals may take place in the 30 days prior to filing.
The employer must prepare a signed recruitment report that describes the recruitment steps taken and the results. The report must describe all recruitment actions, the number of hires, and the number of U.S. workers rejected, categorized by the lawful job-related reasons for rejection. The report must be retained by the employer for five years after filing and must be submitted to DOL in the case of an audit.
The employer must also retain each resume received in response to the PERM recruitment campaign for five years after filing. Employers should sort and retain resumes according to the reason each applicant was rejected. If an employer receives a large number of unsolicited or general applications for employment, we suggest that the PERM recruitment efforts direct applicants to note the specific job title or job code for which they are applying.
Standard for “Qualified” U.S. Applicants
A U.S. worker is considered to be “qualified” for the position if he or she possesses the education, experience, and skills required by the employer for the position, as described on the PERM application. If a U.S. worker does not possess one of the required special skills listed in the application (for example, experience with a software or hardware platform), but could acquire the skill during a “reasonable period of on-the-job training,” then the lack of the skill is not a lawful basis for rejecting the worker. The PERM regulations do not define how long a reasonable period of training might be.
A U.S. worker is a U.S. citizen, permanent resident, asylee, or refugee. Those who have any other type of temporary work authorization (H-1B, L-1, F-1 students, etc.) are not considered U.S. workers, even if they are present in the U.S.
Allowable Requirements for a Position
The PERM regulations make several changes with respect to the requirements that an employer may set for a position. Under former law, a foreign national could not typically satisfy the experience requirement of a labor certification using experience gained while working for the petitioning employer in the same position for which certification is sought. The rationale for this rule was that employers must provide U.S. workers with the same opportunity to obtain on-the-job training as is offered to foreign national employees.
In the PERM regulations, DOL creates a more definitive test. Experience gained by a foreign national with the petitioning employer, or as a contractor working for the petitioning employer, may be used as qualifying prior experience if the experience was gained in a job that is “not substantially comparable” to the job for which certification is sought. “Substantially comparable” is defined as a job that requires performance of the same job duties for more than 50 percent of the time. This requirement can be documented by providing organizational charts, payroll records, and position descriptions for both the prior position and the current position, indicating the percentage of time spent on each job duty.
DOL has also liberalized the definition of “employer” for the purpose of determining when prior experience was obtained while with the petitioning employer. In the past, experience obtained with one of the employer’s overseas branches or with a company that was later acquired by the petitioning employer often could not be used by a foreign national to qualify as experience for the labor certification. Under the PERM regulations, this experience may be considered. The PERM regulations define employer as an entity with the same Federal Employer Identification Number (FEIN) as the petitioning employer. Thus if a foreign national employee gained experience with a related corporate entity, then that experience may be used to demonstrate that the foreign national qualifies for the position at issue in the labor certification, so long as the related entity has a different FEIN than the petitioning employer.
Alien Influence and Control over Job Opportunity
Form ETA 9089 specifically asks the employer whether the employer is a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest. The form also asks if the foreign worker has a familial relationship with any of the owners, stockholders, partners, corporate officers, or incorporators. Presumably, a “yes” answer to these questions would trigger a DOL audit to determine whether the job opportunity was bona fide and open to all U.S. workers. In the event of an audit, the employer must provide business-related documents such as articles of incorporation; lists of corporate officers, titles, positions, and relationships to the foreign worker; the financial history of the company including total investment of each owner; the name of the individual responsible for interviewing and hiring job applicants; and (for companies with 10 or fewer employees) documentation regarding the family relationship between the employees and the foreign worker.
Impact of Layoffs
On Form ETA 9089, an employer must state whether there have been any layoffs of U.S. workers in the area of intended employment during the prior six months in the occupation or a related occupation. (Area of intended employment means the area within normal commuting distance of the foreign national’s worksite.) A related occupation is “any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.” An employer that has experienced such layoffs must document that it notified and considered potentially qualified former U.S. worker employees, and must document the lawful reasons for not hiring the laid off workers. A layoff is defined as “any involuntary separation of one or more employees without cause or prejudice,” and includes reductions in force, restructurings, and downsizings.
DOL issues “audit letters” both randomly and based on certain automated review criteria (that remain unpublished). The audit letters are computer generated documents, often with an addendum containing questions specific to the application.
Employers are given 30 days to respond to an audit letter. Certifying Officers may, in their discretion, grant one 30 day extension for responses. If an employer does not provide a timely response or obtain an extension of time in which to respond, DOL will deny the application. In this situation DOL may order that an employer be required to pursue regular supervised recruitment in future labor certification applications for up to two years. An order requiring supervised recruitment for future cases is a harsh penalty because it will add significantly to the processing time of an application. In addition, DOL scrutinizes supervised recruitment applications closely and therefore the process of preparing such an application is more labor intensive and costly.
Certifying Officers may also order supervised recruitment in other cases where they believe that additional scrutiny is required to ensure a proper test of the labor market. No criteria have been established to limit or guide the discretion of the Certifying Officers in this area.
There are several classifications of family-based immigration, including immediate relatives of U.S. citizens (spouse, minor and unmarried children, and parents) and preference relatives (unmarried sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens, and brothers and sisters of U.S. citizens). These categories are discussed below.
Immediate Relatives of U.S. Citizens
The advantage of qualifying as an immediate relative for family-based immigration is that there is no annual numerical limitation or waiting time for sponsorship. Immediate relatives of U.S. citizens include the spouse (or widow, with certain limitations); minor and unmarried children less than 21 years of age; and parents. For parents of a U.S. citizen to qualify as immediate relatives, the petitioning son or daughter must be at least 21 years of age.
Unlike the immediate relative category, the preference family-based immigration categories generally have annual numerical limitations. Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. The applicant cannot apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories.
The family-based preference categories are as follows:
- Family First Preference: Unmarried sons and daughters (21 or older) of U.S. citizens;
- Family Second Preference: Spouses, unmarried minor children, and unmarried sons and daughters (21 or older) of lawful permanent residents;
- Family Third Preference: Married sons and daughters of U.S. citizens;
- Family Fourth Preference: Brothers and sisters of U.S. citizens, provided the U.S. citizens are 21 or older.
The Visa Bulletin, which is released each month by the U.S. State Department, provides the cut-off dates in each of the preference categories outlined above.
Application Procedures for Immediate Relatives
Adjustment of Status
For permanent residence applications based on marriage to a U.S. citizen, where both individuals are in the United States, it may be possible for the foreign spouse to apply for permanent residence within the United States through a process called Adjustment of Status. To begin this process, the U.S. citizen submits an immigrant visa petition on Form I-130 to the local U.S. Citizenship & Immigration Services (USCIS) office having jurisdiction over the foreign spouse’s place of residence. At the same time, the foreign spouse submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign spouse may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the bona fides of the marriage, and the couple must prove that that the marriage was not entered into for the sole purpose of obtaining a green card.
USCIS schedules an in-person interview for the couple, generally within 3-8 months, depending on the location. The couple may have attorney representation at the interview.
Where the couple has married abroad, the foreign spouse usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States. (If the parties are not yet married, it may be possible for the foreign fiancé/fiancée to enter the United States on a K-1 visa.)
To initiate the immigrant visa application, the U.S. citizen spouse must submit an I-130 visa petition to either the appropriate USCIS office in the United States (if the U.S. citizen spouse resides in the United States) or in some cases, directly to the U.S. embassy or consulate in the country where the foreign citizen spouse lives. It may take a number of months to obtain the approval.
Once the visa petition has been approved, the foreign spouse will be contacted by the U.S. State Department’s National Visa Center (NVC) and the U.S. embassy or consulate abroad, to request fees, documentation, and to provide information on the consular appointment. It may take up to 9 months for the immigrant visa interview to be scheduled after approval of the I-130.
Application Procedures for Preference Relatives
Adjustment of Status
For permanent residence applications based on the four preference categories, where the foreign relative is in the United States, it may be possible for the foreign relative to apply for permanent residence within the United States through a process called Adjustment of Status. To begin this process, the U.S. citizen or Lawful Permanent Resident sponsor submits a petition on Form I-130 to the local USCIS office having jurisdiction over the foreign relative’s place of residence. As described above, the filing date of a petition becomes the applicant’s priority date. The applicant may not apply for permanent residence until his or her priority date is reached, which may take several years for certain heavily oversubscribed categories.
Once the I-130 is approved and the foreign relative’s priority date is reached, the foreign relative submits an application for adjustment of status on Form I-485, photographs, a medical examination, and numerous other USCIS forms. The foreign relative may apply for an Employment Authorization Card (EAD) and Advance Parole to allow him or her to work and travel while the application is pending. The burden is on the parties to establish the validity of the relationship.
USCIS schedules an in-person interview for the foreign relative and the U.S. citizen or Lawful Permanent Resident sponsor, generally within 3 to 8 months, depending on the location. The foreign relative may have attorney representation at the interview.
Where the foreign relative resides abroad, he or she usually must remain abroad until obtaining approval of an immigrant visa by a U.S. embassy or consulate outside of the United States.
To initiate the immigrant visa application, the U.S. citizen or Lawful Permanent Resident relative must submit an I-130 visa petition to the appropriate USCIS office in the United States.
Once the I-130 is approved, and after the foreign relatives priority date is current based on the U.S. State Department’s Visa Bulletin, the foreign relative will be contacted by the U.S. State Department’s National Visa Center (NVC) and the U.S. embassy or consulate abroad, to request fees, documentation, and to provide information on the consular appointment. It may take up to 9 months for the immigrant visa interview to be scheduled after initial contact from the NVC.
If a family-based permanent residence application is based on a marriage less than two years old when the foreign spouse becomes a permanent resident, the permanent residence will be conditional and the green card will expire after two years. Within the 90 days prior to the expiration of the green card, the spouses must submit a joint petition on Form I-751 to remove the conditions on the foreign spouse’s residence. If the marriage has terminated by reason of divorce, death of the U.S. citizen spouse, or spousal abuse, the foreign spouse may apply for a waiver of the joint petition requirement.