Employment-Based Immigration

Our Legal Team

Steven L. Tuchman
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Thomas R. Ruge
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Robert W. Rund
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Sarah Moshe

Sarah Burrow
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Dallin Lykins

Dallin Lykins
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Employment-Related Immigration

Permanent Residency Through Employment

The process of applying for permanent residency based on employment is normally a three-step process. In some situations this process can be condensed to two steps, and sometimes an offer of employment is not required. First, the normal three step process will be discussed.

The first step is called "labor certification", and it is a process for obtaining a certification from the United States Department of Labor that no qualified United States workers are available to fill the position and that the employment of the alien in the position will not adversely affect the wages and working conditions of United States workers.

The standards used by the U.S. Department of Labor (DOL) in making labor certification determinations is whether:

  • There are not sufficient U.S. workers able, willing, qualified, and available to accept the job at the prevailing wage for that occupation in the area of intended employment;
  • The employment of the foreign employee will not adversely affect the wages and working conditions of the U.S. workers; and
  • The employer has met the procedural requirements of the applicable regulations.

Points 1 and 2 above are established by recruitment efforts by the employer.

Basic Qualifying Criteria for the Employer

The business needs of every employer are unique, and therefore the qualifications of its employees will similarly vary. The list below is the general criteria required for a Labor Certification.

  • Applications must file using the new PERM process and adhere to its regulations;
  • Upon completion of the three step employment based permanent immigration process, the employer must hire the foreign worker as a full time employee;
  • There must be a bona fide job opening available to a U.S. worker;
  • The employer must pay at least the prevailing wage for the occupation in the area of intended employment;
  • The employer must document its job requirements. The job requirements must adhere to what is customarily required for the occupation in the U.S. and it may not be tailored to the foreign national's qualifications;
  • The employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.

Applying for a New Labor Certification

To apply for a new labor certification, we must analyze the job title and description, the intended employee's qualifications and work experience, the prevailing wage, and the proper form of recruitment for the position. After this is complete, the ETA Form 9089, Application for Permanent Employment Certification ("PERM"), may be filed online or by mail-in process.

The filing of the Application for Permanent Employment Certification does not put the foreign worker in lawful immigration status nor does the filing confer employment authorization. In order to employ the foreign worker lawfully before completion of this process, the foreign worker must be in lawful status and, if working, must have employment authorization. See our discussion of employment authorization and nonimmigrant visas for professionals at Temporary Visas – employment, family, and other.

Below is a general outline of how the Application for Permanent Employment Certification is filed and what is required for this type of application.

  • Filing Online. The PERM online system for permanent labor certification offers a registration feature for employers only at: http://www.plc.doleta.gov/. The employer creates sub-accounts so we may submit PERM applications on your behalf.
  • Mail-in Filing. National Processing Centers have been established in Atlanta and Chicago to process labor certification applications. However, all supporting documentation must be submitted if requested. Our firm policy is to obtain from the client copies of all supporting documentation, before the PERM is filed.
  • Prevailing Wage Determination ("PWD"). The wage of the foreign national must now meet or exceed the prevailing wage as determined by governmental surveys. We must seek a PWD prior to filing the labor certification application from the local State Workforce Agency ("SWA") and provide them with the proffered wage, occupational code, skill level, and job title. The PWD is valid for one year (depending on the wage source used) from the date of determination and must be paid either from the time of permanent residency is granted or from the time the alien is admitted to take up the certified employment. An appeal process for this is available.
  • Pre-filing Recruitment Steps. Two different Sunday advertisements must be placed in a newspaper of general circulation more than 30 but less than 180 days before filing. Additional recruitment is required if the offered position is a professional one.
  • Job Order Placement. A job order must be placed with the SWA (e.g. state agency, which in Indiana is Indiana Workforce Development) for at least 30 days.

Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or the Certifying Officer otherwise requests it. These documents must be retained for five (5) years from the date of filing by the employer. The labor certification process should take approximately four (4) months to complete; 30 days for Sunday ads; 30 days for job order; and 45 to 60 days for the application to be processed by the DOL. However, be advised that these days are projections by the DOL only, and processing times very considerably.

It also is important to understand that statements and representations made to the government in this process are made under oath with penalties for misrepresentations or false statements.

I-140 Petition and Granting Lawful Permanent Resident (Green Card) Status

After the labor certification is obtained, the second and third steps in the process of obtaining the permanent resident visa can be taken. This involves a visa petition filed by the employer with United States Citizenship and Immigration Services (USCIS) and an application filed by the alien.

The I-140, Immigrant Petition for Alien Worker, is prepared for submission by the employer on behalf of the alien. It is important at this time to be able to verify that the alien had the education, knowledge and experience listed as "minimum requirements" on the labor certification application prior to employment with the petitioning employer. Degrees, transcripts and employment verification documentation must be submitted with the I-140 petition to verify that the alien has the required education and experience. The employer must also submit financial information to USCIS with the I-140 petition to demonstrate the employer has the ability to pay the applicable wage.

The foreign national must prepare for filing all documentation required for the adjustment of status application. The alien must submit the medical examination and photographs at this stage of the process. The alien must also submit his or her birth certificate and a copy of his or her passport as well as verification of all nonimmigrant stays in the United States. If the alien is married, then it is also necessary to submit an adjustment application along with the same documentation for any spouse and children who were not born in the United States and who seek permanent resident status.

At the final step, which is taken as adjustment of status or through consular processing abroad, the U.S. government determines whether the alien is undesirable and thus ineligible to become a lawful permanent resident. Medical examinations and fingerprints are taken, and a series of questions are asked about the alien's background. Problems can arise if the alien has a criminal conviction, has worked illegally in the U.S., has remained in the U.S. without lawful status has contributed money to terrorist supporting organizations, has untreated TB, and for other reasons.

Lewis & Kappes attorneys regularly handle all aspects of PERM, visa petitions, adjustment of status and consular processing of employment based permanent immigration cases.

Avoiding PERM Labor Certification

Some specially qualified foreign nationals can avoid the PERM labor certification and proceed directly with the I-140 visa petition and either adjustment of status or consular processing. These petitions are classified as "EB-1" and our immigration team is experienced in EB-1 matters as well.

EB-1: Extraordinary Ability

If the occupation is in the sciences, arts, education, business, or athletics, and the applicant is one of the small percentage who have risen to the very top of his or her field, then the applicant may be able to qualify under the "EB-1 Individuals with Extraordinary Ability" category.

In order to make a case based on "extraordinary ability", the applicant must have either (a) received a major internationally recognized award, such as a Nobel Prize; OR (b) satisfy at least three of the following criteria:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Membership in associations in the field which require outstanding achievements as judged by recognized national or international experts;
  • Published material about you in professional or major trade publications or other major media;
  • Participation on a panel or individually as a judge of the work of others in the field or an allied field;
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  • Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  • Displays at artistic exhibitions or showcases;
  • Evidence performing in a leading or critical role for organizations or establishments that have a distinguished reputation;
  • Evidence that you have commanded a high salary or other high remuneration for services;
  • Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales;
  • Comparable evidence where the above standards do not readily apply.

EB-1: Multinational Executives and Managers

This category is for executives or managers who will be employed in the U.S. in an executive or managerial position by a company, or affiliate or subsidiary of a company, which employed the foreign national outside the U.S. in a managerial or executive capacity (a) for at least 1 year in the past 3 years if you are currently outside of the U.S., or (b) for at least 1 year in the 3 years preceding one's entry into the U.S. if one is currently in the U.S.

This petition must be filed by the employer. The qualifications for this category vary somewhat depending on whether or not the employee/applicant currently is in the U.S.

If the applicant is outside the U.S.:

He or she must have been employed outside the U.S. for at least 1 year in the past 3 years in a managerial or executive capacity; and

The same firm or corporation or other legal entity, or its affiliate or subsidiary, must intend to employ one in the U.S. in the same managerial or executive capacity on a permanent basis.

If the applicant is in the U.S.:

He or she must have been employed outside the U.S. for at least 1 year in the 3 years preceding your entry into the U.S. usually as a nonimmigrant in a managerial or executive position;

By the same employer, firm or corporation or other legal entity, or its affiliate or subsidiary, which intends to employ one in the U.S. in the same managerial or executive capacity on a permanent basis.

EB-1: Outstanding Professors and Researchers

This classification is for professors who are offered a tenured or tenure-track position by a university or other institution of higher education, as a teacher or in a permanent position as a researcher in one's academic field; or researchers offered a permanent research position by a qualifying private employer.

FIRST: The applicant must possess at least 2 of the following:

  • Receipt of major prizes or awards for outstanding achievement in the academic field;
  • Membership in associations in the academic field, which require outstanding achievements of their members;
  • Published material in professional publications written by others about your work in the academic field;
  • Participation on a panel, or individually, as the judge of the work of others in the same or an allied academic field;
  • Original scientific or scholarly research contributions to the academic field; or
  • Authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field.

SECOND: The applicant has at least 3 years of experience in teaching and/or research in the academic field.

THIRD: If the position is with an institution of higher education, the job must be tenured or tenure-track position as a teacher or in a permanent position as a researcher.

If the position is for a private employer, it must be a permanent research position in the academic field, and the employer must employ at least 3 full-time researchers and have achieved documented accomplishments in the field.

Religious Workers

Another employment based permanent immigration category that avoids PERM labor certification is Religious Worker (sometimes called "EB-4"). See our discussion of Religious Workers at Investors, Juveniles, Religious Workers and Other Special Immigrants.

National Interest Waivers of Labor Certification

PERM labor certification can be avoided when an applicant meets the criteria for a National Interest Waiver (NIW). These applications are scrutinized carefully by the government and will be granted only where:

1. The proposed employment has substantial interest merit;

2. The benefit to the U.S. will be national in scope; and

3. The national interest of the U.S. would be adversely affected if labor certification were required.

Physicians and Employment Based Permanent Immigration

In addition to the requirements discussed here for obtaining a green card based on employment, there are special considerations for physicians. First, many doctors have lived in the U.S. as an exchange visitor in J visa status, which requires them to return home for two years before applying for a U.S. visa. There are special waivers of the 2-year home residence requirement for physicians. Second, medical doctors educated in foreign schools are inadmissible and cannot qualify for a green card if they are coming to perform clinical work in the U.S. This too can be avoided through certain waivers and passing qualification examinations.

Most physicians seeking a green card and who are lawfully present in the U.S. in J, H or O status already are performing clinical work. Thus, for these doctors the licensing and inadmissibility issues have been addressed. Foreign national physicians who seek to acquire a green card and come to the U.S. on the basis of a job offer to perform clinical medical cases, without first obtaining a J, O or H visa, will be required to pass certification and license examinations. Specifically, they will need to pass USMLE 1, 2, 3 or equivalent, obtain ECFME certification and state licensure.

What follows here is a discussion of J visa waivers of the home residence requirement and permanent immigration for physicians.

J-1 Waivers for Physicians

While not an immigration status in and of itself, Foreign Medical Graduates ("FMG") often need J-1 waivers in order to remain in the U.S. and work. Many FMGs attend U.S. post-graduate training programs in J-1 status through sponsorship by the Education Commission on Foreign Medical Graduates or ECFMG. With J-1 status comes a requirement that physicians return to their home country for two years before they may obtain H-1B status or permanent residence in the U.S. However, through the Conrad 30 program, these physicians may obtain waivers of this two-year home residence requirement by working in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) for a three-year period.

Physicians who obtain such a waiver currently must work in H-1B status, work full-time (average at least 40 hours per week), and start employment within 90 days of final waiver approved by USCIS. The VA system also sponsors waivers apart from those in underserved areas. Although specific Conrad 30 waiver requirements vary by state, the sponsoring institution must demonstrate that it has been unsuccessful in its efforts to recruit a U.S. physician, typically during the 6-month period preceding application.

Failure to complete the 3-year waiver commitment means that the 2-year home residence requirement must be satisfied. Under circumstances where the physician can demonstrate "extenuating circumstances" which excuse failure to complete the commitment with the sponsoring institution, along with an offer of employment from another qualifying institution, a doctor who fails to complete the 3 year service initially may be able to preserve the waiver and continue working to fulfill the remaining waiver commitment.

Thus, permanent residence can be pursued by physicians in the manner described above for all employment based permanent immigration so long as the licensing and J waiver issues are addressed. Our immigration team has worked with many physicians seeking permanent resident status and with health care providers who want to hire foreign physicians. Our team will provide the assistance to carefully comply with all requirements so that all issues are resolved and to ensure the acquisition of the green card acquired as quickly as possible.