Most foreign national employees begin working in the US on an employer-sponsored temporary visa (i.e., TN, H-1B, L-1, etc.). An employer who seeks to have a foreign national work for an indefinite period in the US may sponsor him/her for green card status (Immigrant Visa). Due to lengthy processing times, this process should start well before the foreign national’s temporary work status expires, in order to ensure continued employment authorization and visa status. Generally, an employment-based green card is tied to the sponsoring employer as well as the particular position described. In most cases, the first step involved in obtaining a green card for a foreign national employee is the filing of a Labor Certification application with the US Department of Labor (DOL), through the PERM process. The priority date is established from the date the PERM is submitted to the DOL.
Step 1. PERM (Labor Certification):
Most employment sponsored green cards require the filing of a Labor Certification application with DOL through a process called PERM (Program Electronic Review Management). Unless the foreign national qualifies under one of the Labor Certification exempt classifications (see Step 2 below), the PERM application must be approved before the case can move to the second step of the process. Generally, an employer must conduct extensive recruiting and advertising for the position, and evaluate the qualifications of applicants for the position, to demonstrate to the DOL that there are no US citizens, US permanent residents, or other qualified US workers ready, willing and qualified to perform the particular job. A PERM application is specific to the employer, the position, the position duties and the geographic location.
- Adjudication of a PERM case varies based on processing times. It is anticipated to take between 6 months to over one year, depending on a number of factors. All recruitment must have taken place between 30 and 180 days prior to filing. The type of recruiting required depends on the type of position – non-professional or professional. An employer must document the advertising and recruitment conducted.
- All PERM cases require the following: an application to the local State Workforce Agency (SWA) to confirm the minimum salary required (prevailing wage), a job order for 30 days, evidence of an on-site job posting (posted for 10 consecutive business days, and evidence of advertising in 2 Sunday editions of a paper of significant circulation. In addition, applications for professional positions require at least three additional methods of advertising which can be chosen from the following: job fairs; employer’s website; job search website other than the employer’s (i.e. Monster.com, etc.); on-campus recruitment; trade or professional organizations; private employment search firms; employee referral programs; notice of job opening at a campus placement office (if no experience is required); local and ethnic newspapers (if appropriate for the position); and radio and television advertisements. Proof of each form of advertising must be maintained for at least five years from the date of filing. Cases are appealed to the Board of Alien Labor Certification Appeals, and so in addition to the regulations, the relevant case law must also be followed. Clark Hill’s Immigration Practice Group regularly lectures to lawyers and business professionals on this complex process.
Step 2. Immigrant Petition for Alien Worker:
This process is required of ALL employment-based green card cases. It is the second stage of the process for employees who have an approved PERM application from DOL, as the US Citizenship and Immigration Services (USCIS) must confirm the PERM approval and that the foreign national has the qualifications for the job. If the appropriate work was done in the first stage during the PERM application, this second stage should not be challenging for most applications. PERM applications are EB-2 or EB-3 applications (see the Clark Hill website for a discussion of priority dates).
Foreign national employees who are exempt from the PERM process begin the green card process at this stage, and file directly with the USCIS Regional Service Center. The following classifications are all exempt from the Step 1 PERM process:
- Intracompany Executives or Managers: Foreign national employees who were employed outside the US in an executive or managerial capacity for at least one year with a company related to the US company (parent, subsidiary or affiliate), for one year prior to admission to the US, who have an executive or managerial role in the US, generally qualify for this status. The USCIS’s required proof for this classification has increased dramatically in the past few years. Persons in the US in L-1A status usually meet these qualifications. This category requires the company’s sponsorship. This category falls under an EB-1 classification (see the Clark Hill website for a discussion of priority dates).
- Outstanding Professors and Researchers: This classification is available to a foreign national who is recognized internationally for his/her pioneering achievements in the sciences or other academic areas, demonstrated by extensive evidence of international preeminence and original scholarly contributions including: publications in peer-reviewed journals; patents; the individual’s serving in a role requiring judgment or critical review of other’s work; citation of the individual’s work by other authors; significant awards or prizes; and reference letters by preeminent members of the field supporting the individual’s international acclaim and achievements. This category requires the Academic Institution or Research Entity’s sponsorship and that, at a minimum, the position is permanent. This category falls under an EB-1 classification (see the Clark Hill website for a discussion of priority dates).
- Extraordinary Ability Professionals: This classification is available to a foreign national who holds sustained national or international recognition in the sciences, arts, education, business or athletics, demonstrated by extensive evidence including: prominent publications regarding the individual and/or the individual’s work; publications written by the individual; significant awards or certificates; public recognition of the individual’s accomplishments; the individual’s serving in a role requiring judgment or critical review of other’s work; the individual’s serving in prominent role in an organization; and the individual receives a high salary. A foreign national who qualifies under this classification may sponsor himself/herself, or may be sponsored by an employer. This category falls under an EB-1 classification (see the Clark Hill website for a discussion of priority dates).
- National Interest Waiver: This classification requires that the work of a foreign national substantially benefit the US national interest. It is available to a foreign national with a Master Degree or higher (or equivalent), whose achievements and recognition are significantly above their peers. Reference letters are required to prove the foreign national’s achievements and recognition. A letter from a US federal government agency is preferred. The foreign national may sponsor himself/herself or can be sponsored by an employer. This category falls under an EB-2 classification (see the Clark Hill website for a discussion of priority dates).
- National Interest of Waivers for Physicians: This classification is available to physicians who can demonstrate that they have made a commitment to work full time in a clinical practice for a period of five years. The employment must take place in a health professional shortage area, medically under-served area, mental health professional area (for psychiatrists only) or at a Veterans Affair Medical Center. The physician is also required to obtain confirmation, from a state department of health or a federal agency that has knowledge of the physician’s qualifications, that the physician’s work is in the public interest. This category falls under an EB-2 classification (see the Clark Hill website for a discussion of priority dates).
- Schedule A Occupations: This classification is for licensed nurses, licensed physical therapists, and persons of exceptional ability. Each of these have their own unique requirements. This category requires employer sponsorship. This category falls under an EB-2 classification (see the Clark Hill website for a discussion of priority dates).
- Exceptional Ability – Schedule A Group II: This classification is available to a foreign national who meets both the U.S. Department of Labor’s test and the USCIS test for Exceptional Ability. This category requires employer sponsorship. This category falls under an EB-2 classification (see the Clark Hill website for a discussion of priority dates). For more information regarding this classification, please contact Clark Hill.
Step 3. Permanent Residence Applications in US or Abroad:
This is the final stage of the employment-based green card process where the foreign national, and his or her immediate family, apply to become US permanent residents. Applicants may select either Adjustment of Status or Consular Processing as the mechanism to complete the process. This third stage cannot be filed until the priority date is available (see the Clark Hill website for more on priority dates).
A) Adjustment of Status: An application for Adjustment of Status (AOS) is available only to foreign nationals (and his/her family members) who are currently residing and physically present in the US, and in legal status. The AOS application is filed at the appropriate USCIS Regional Service Center, and may be filed concurrently with stage 2, listed above. Filing the AOS allows for work and international travel authorization while the AOS is pending. If the priority date was current when the AOS was filed, but then falls back while it is pending (referred to as retrogression), the AOS can remain pending, but cannot be approved until the priority is again current. If a foreign national has been in the US without appropriate status for more than six months, an employment based green card through Adjustment of Status is generally not available. For a discussion of Adjustment Portability, see the Clark Hill website.
B) Consular Processing: Consular Processing is an alternate way to complete the green card process. A personal interview at the appropriate US consulate outside the US is required of the foreign national, and any dependent family members. No interim work or travel authorization is permitted, independent of the employee’s temporary work status, through Consular Processing. This method is generally required if the foreign national is and his/her family are not residing the US.