PERM Labour Certification
There are three stages to the Labor Certification based greencard process which consist of the PERM Labor Certification (PERM), the I-140-Immigrant Visa Petition, and the I-485- Application for Adjustment of Status.
First Stage: PERM Labor Certification with the DOL.
The most common employment-based method is through a labor certification. An approved Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers.
The Department of Labor (aka: the “DOL”) is responsible for the review and adjudication of labor certification applications. The labor certification application is submitted electronically to a national DOL processing center. The date of submission of the online form will serve as the priority date for the entire permanent residency process (i.e., one's place in the green card queue).
The DOL reviews the labor certification application and may perform an audit of the application and request that documentation of the application be submitted. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications are then returned for signatures before the certified application can be used in the second stage of the process.
Second Stage: Form I-140: Immigrant Visa Petition with the USCIS.
Upon approval of the labor certification, the second stage of the permanent residence process is with the U.S. Citizenship & Immigration Service (aka: “USCIS”). This step involves preparation and filing of Form I-140, the Immigrant Visa Petition. This step is to demonstrate to the USCIS that the employer is sponsoring the foreign national for the position described in the labor certification and that the employer has the ability to pay the wage as stated on the labor certification. Also, it is at this point where the foreign national’s qualifications for the position are fully reviewed. Our office prepares the I-140 and supporting documentation for USCIS adjudication.
Third Stage: Form I-485: Application for Adjustment of Status to Permanent Residence with the USCIS.
The above referenced Form I-140 petition provides the basis for the employee's Form I-485 application for Adjustment of Status (AOS) to Permanent Residence. The employee, along with his/her dependents, can file his or her I-485 application concurrently, along with the I-140 so long as his/her priority date is current. Priority dates are the queuing system for cases under an immigrant quota. If these priority dates are not current, the employee must wait for his/her priority date to become current to submit their AOS applications. The Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html. With the approval of the AOS application, the employee and his/her dependents become U.S. permanent residents and green cards are generally issued to them through the mail.
Alternatives to PERM Labor Certification
Several groups of immigrant visa applicants may be eligible to bypass the labor certification process with the Department of Labor. These applicants may file Form I-140 immigrant petition directly with U.S. Citizenship & Immigration Service. This group of applicants includes the following:
- Extraordinary Ability Immigrants
- Outstanding Researchers/Professors
- Multinational Managers/Executives and
- National Interest Waivers
Extraordinary Ability Aliens
Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB1-A). An individual may qualify for permanent residence in this category if his/her extraordinary ability in the sciences, arts, education, business, or athletics has been demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the United States to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the United States.
An individual may therefore self-petition under this category. A job offer is not required for this petition. However, the applicant must demonstrate that he/she will continue to work in his/her field of extraordinary ability.
The Immigration Service defines "extraordinary ability" 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," as proven by "sustained national or international acclaim" and that one's achievements have been recognized in the field of expertise.
An applicant may qualify for this category by demonstrating a one-time achievement such as a Nobel Prize or Academy Award. Alternatively, an applicant may demonstrate extraordinary ability qualification on the basis of evidence demonstrating his/her extraordinary ability. The Immigration Service considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category (meet must at least three of the ten criteria):
- Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of membership in associations in the field for 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 in professional or other major trade publications or major media, specifically referring to the applicant’s achievements, contributions or work in the field;
- Evidence of one's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
- Evidence of one's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- Evidence of one's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of one's work in the field at artistic exhibitions or showcases;
- Evidence that one has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
If the above criteria do not readily apply to the applicant, regulations allow the applicant to submit comparable evidence to establish his/her eligibility for the category. In addition to meeting three of the above ten criteria, the applicant must prove that he/she has sustained international or national acclaim in his/her field of extraordinary ability.
Outstanding Professors and Researchers
The outstanding professor and researcher category is also a first preference employment-based immigrant visa category (EB1-B). An outstanding researcher or professor is defined as an individual who is recognized internationally as outstanding in his/her specific academic area of teaching and/or research. An individual may not self-petition under this category. The immigrant visa petition (Form I-140), must be filed by a qualified U.S. employer.
Moreover, the individual must possess at least three years of experience teaching or in research in the academic area. In addition, he/she must have a job offer for the following:
- A tenured or tenured-track position within a university or institution of higher education to teach in the academic area,
- A comparable position with a university or institution of higher education to conduct research in the area, or
- A comparable position to conduct research for a private employer. The private employer must evidence documented research accomplishments and employ at least three full-time researchers.
In addition to the above, the following types of evidence are considered in evaluating whether an individual qualifies as an outstanding professor or researcher:
- Documentation of the beneficiary's major prizes or awards for outstanding achievement in the academic field,
- Documentation of the beneficiary's membership in associations in the academic field which require outstanding achievements,
- Published material in professional publications written by others about the beneficiary's work in the academic field,
- Evidence of the beneficiary'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 beneficiary's original scientific or scholarly research contributions to the academic field, or
- Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
In addition to meeting two of the above referenced criteria, the applicant must prove international recognition in his/her academic area.
Multinational Executives and Managers
Managers or executives of multinational companies are eligible for permanent residence under a first preference employment based immigrant category(EB1-C). This is often a continuum of the L-1A nonimmigrant visa status.
This category applies to intracompany transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a qualifying (branch, parent, affiliate, or subsidiary) employer in the U.S. in a managerial or executive capacity. As with the L-1A, this petition requires clear documentation of the qualifying relationship of ownership and control between the U.S. employer and foreign employer.
There are two types of managers recognized by the Immigration Service to qualify under this immigrant visa category. The first type is a manager who directly manages people; these managers have professional or managerial employees who report directly to them. The second type of recognized manager is he/she who manages an essential function within the entity. These managers must be at a senior level with respect to the function managed, must have substantial discretionary, day-to-day authority over the function managed, and must be primarily engaged in managerial duties.
Preparation and Filing of Form I-140 and Form I-485
The preparation of the I-140 petition for extraordinary ability, outstanding professors and researchers, and multinational managers and executives cases, is a complex and methodical process. The above referenced Form I-140 petition provides the basis for the employee's Form I-485 application for adjustment of status (AOS) to permanent residence. Provided priority dates are current, the principal applicant, along with his/her dependents, can file his or her Form I-485 application concurrently, along with the I-140. Priority dates are the queuing system for cases under an immigrant quota. If these priority dates are not current, the employee must wait for his/her priority date to become current to submit their AOS applications. The Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. With the approval of the AOS application, the employee and his/her dependents become U.S. permanent residents and green cards are generally issued to them through the mail.