Permanent Employment in the U.S.
The great majority of attempts to obtain permanent residence (green card) based on an offer of employment start with an application for Labor Certification through an administrative process now called PERM. The purpose of PERM, which is processed with the U.S. Department of Labor (DOL) and not with the U.S. Citizenship and Immigration Services (CIS), is to obtain a certification from DOL that if a foreign national is allowed to come to the United States permanently to fill an offered position the foreign national is (1) not taking that position away for a U.S. worker who wants the position and (2) also satisfies all of the minimum requirements for the position. Based on over twenty-six years of experience with the Labor Certification process, no area of Immigration Law causes more concern for employers. The process causes concern because the legal requirements for testing the United States labor market are completely different from the steps an employer would normally take to find an employee. For this reason employers often assume, incorrectly, that there is no chance that a particular position could possibly be certified, while others, who try to go through Labor Certification without legal representation, are doomed to failure because they are unfamiliar with what the law actually requires. At Perez & Associates we have been helping employers obtain Labor Certifications for over twenty-six years. An employer should never pass up a foreign worker because they fear the Labor Certification process. Contact Perez & Associates, let us evaluate your case, and give you an idea of your chances of succeeding with a Labor Certification.
BASIC REQUIREMENTS FOR PERM
Payment of Prevailing Wage
The law states that a foreign worker must be paid at least the prevailing wage for the position offered. The prevailing wage for a specific position in a particular geographic area is determined by DOL. Employers who are trying to obtain Labor Certification for an existing employee often conclude, incorrectly, that if the prevailing wage is higher than the wage they have been paying that foreign worker they must immediately increase that employee’s wages. That’s not the case. The reason is that the Labor Certification process, as well as the other legal steps that follow, are just that, steps towards an intention to employ a foreign worker permanently in the future when that foreign worker obtains their permanent residence (green card). Only then, when the foreign worker is finally granted permanent residence (a green card), will the employer be required to start paying the prevailing wage. Perez & Associates will work with employers to help identify the proper job title and will obtain the prevailing wage from DOL.
Before anything is filed with DOL the employer is required to undertake certain specified recruitment efforts. For all positions these include such things as newspaper advertising, posting of the job opportunity on business premises, and the listing of the position with the State Workforce Agency. For professional positions employers must take all of the steps just mentioned plus three additional steps from a list of ten. Perez & Associates will provide employers with the text for the newspaper ads and internal posting. We will also take care of listing the position with the State Workforce Agency. Finally, when required, we will work with employers to help identify the three additional recruitment efforts best suited to the employer. Finally, we will instruct the employer on the proper way to interview any prospective applicants so that improper interviewing does not violate the requirements of the Labor Certification process. Remember, the Labor Certification process is nothing like a normal hiring process.
Filing of the Application
Under PERM, applications are filed on line. The online PERM application is a very complicated, ten page application. Complicated because many of the questions are ambiguous. This makes it easy to enter a wrong answer. The problem is that you may not know until years later that the wrong answer has voided the entire process. The attorneys at Perez & Associates have participated in seminars and frank discussions with DOL to determine the correct way to answer the questions. With Perez & Associates assisting you the application will be done right the first time. Perez & Associates will also file the application for the employer and respond to any questions from DOL.
Once filed, Labor Certification (PERM) applications are typically approved in about 90 days.
DOWNLOAD LABOR CERTIFICATION PDF
Under the EB-2 category the immigration laws of the United States make it easier for certain foreign nationals to obtain employment-based permanent residence (green card). Some foreign nationals in the EB-2 category are also exempt from the Labor Certification (PERM) requirement and may proceed directly to the filing of a residency petition. Immigrant Visas (Green Cards) in the EB-3 category for Professionals & Other Workers, which include foreign nationals coming to the United States to fill positions requiring two or more years of training, education, or experience up to Bachelor’s degree, are now backed up several years. For this reason United States employers should look into a prospective foreign worker’s eligibility under the EB-2 category since Immigrant Visas (Green Cards) in the EB-2 category are still available. Employers will be surprised to learn that it is easier than they might think to qualify a prospective foreign worker under the EB-2 category. Let Perez & Associates, with our over 26 years of experience, evaluate whether you, or a prospective foreign worker, qualifies for an Immigrant Visa (Green Card) under the EB-2 category. E-mail us or call for an office or telephone conference.
The foreign nationals who can take advantage of the EB-2 category include the following:
Persons with advanced academic degrees, such as a Master’s degree or a Doctorate, coming to the United States to fill a position that requires the advanced degree;
Persons with a Bachelor’s degree and at least five years of progressive experience in the specific are of employment coming to the United States to fill a position that requires a Master’s degree;
Person’s whose employment in the United States is in the national interest of the United States; and
Persons of exceptional ability.
Professionals with Advanced Degrees
The EB-2 category is open to international professionals with advanced degrees. The job must require, and the foreign national must possess, an academic or professional degree above the level of a U.S. Bachelor’s degree or the equivalent foreign degree. A foreign national who does not hold a sufficient degree may still qualify for an EB-2 visa if he or she has a Bachelor’s degree plus a minimum of five years of progressive experience in the area of employment. This alternative means of satisfying the advanced degree requirement only applies to specialties that require a Master’s degree. Experience cannot serve as a substitute for the Bachelor’s degree, and it does not apply to positions that customarily require a Doctorate.
Foreign nationals can qualify under the EB-2 category, and will not be required to obtain a Labor Certification (PERM), if the work the foreign national will do in the United States will be in the national interest of the United States. To prove eligibility for the national interest waiver, the petition must demonstrate that:
(1) the foreign national’s employment will be in a field of substantial intrinsic merit;
(2) will provide benefits that are national in scope; and
(3) will serve the national interest to a substantially greater degree than would an available
U.S. worker with the same minimum qualifications.
Persons of Exceptional Ability
Another EB-2 category is designed for foreign nationals with expertise in the arts, sciences, or business that is significantly above the ordinary. To qualify, the foreign national must possess at least three of the following six credentials:
1. An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. At least 10 years of full-time experience in the relevant occupation;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the foreign national has commanded a salary or other remuneration for services that demonstrated
5. Membership in professional associations; or
6. Recognition for achievements and significant contributions to the field by peers, governments, or other organizations.
Where the above credentials do not apply to a specific occupation or field, other comparable evidence can be submitted.
DOWNLOAD ADVANCED DEGREE PROFESSIONALS PDF
Under current law most employment based applications for Lawful Permanent Residence (Green Card) will file under the EB-3 category. The EB-3 category includes applications based on permanent positions with United States employers in jobs that require at least two years of training, education, or experience. It is important to note that unlike the H-1B category for temporary employment, which only applies to positions with United States employers that require a four year college degree or its equivalent, the EB-3 category includes positions that do not require a college degree. The residency process in the EB-3 category involves three steps. While the employment-based residency process is a complex process, with Perez & Associates’ decades of experience and success in this specialized area of Immigration Law, we make the process seem easy for both the United States employer and the employee.
STEP 1: LABOR CERTIFICATION
The first step, Labor Certification (PERM), requires the testing of the United States labor market to make sure that if the foreign worker is permitted to take the offered position he or she is not taking the job away for a United States worker who wants the position and satisfies all of the minimum requirements for the position. This is a unique process that is undertaken with the United States Department of Labor and is explained in more detail on the page of this web site dedicated to the Labor Certification (PERM) process.
STEP 2: RESIDENCY PETITION
Once the Labor Certification has been issued by the United States Department of Labor, the next step is the filing of a residency petition by the United States employer. The goal of the petition is a determination by the United States Citizenship and Immigration Services (CIS) that the foreign national is eligible for Lawful Permanent Residence (Green Card) in the EB-3 category. To obtain an approval the employer must show (1) that they have obtained a Labor Certification for the position from the United States Department of Labor, (2) that the foreign national meets or exceeds all of the requirements for the position as set out in the application for Labor Certification, (3) and that the United States employer had the financial ability to pay the offered wage as of the date the application for Labor Certification was filed (even though the employer is not required to pay this amount until the green card has been approved).
STEP 3: RESIDENCY APPLICATION
If the foreign national is legally inside the United States when the Labor Certification (PERM) is approved the foreign national and his or her spouse and unmarried children under 21 may file applications for Lawful Permanent Residency (Green Card) at the same time as the residency petition. With the filing of these applications all the applicants become eligible for employment and travel authorization.
If the foreign national is outside the United States the Citizenship and Immigration Services will forward the file to the United States Department of State (DOS). DOS will send out the documents and forms that must be completed before an Immigrant Visa interview will be scheduled in the foreign national’s country of birth or last residence. When the Immigrant Visa is granted the foreign national is free to travel to the United States. Upon arriving in the United States the foreign national becomes a Lawful Permanent Resident.
DOWNLOAD PROFESSIONAL & OTHERS PDF
The immigration laws have established the EB-1(1) category so that persons who have an extraordinary ability in the sciences, arts, education, business, or athletics can become permanent residents of the United States more easily than others. The reason is the perception that persons of extraordinary ability will contribute to and have a beneficial impact on the U.S. To qualify as a person of extraordinary ability an applicant must demonstrate that he or she has acquired national or international acclaim and recognition in one of the listed areas.
OUR EXPERIENCE WITH PERSONS OF EXTRAORDINARY ABILITY
While very few people have won Wimbledon or received a Nobel Prize, the receipt of such an award is not the only way to qualify as a person of extraordinary ability. Based on the ability to satisfy some the criteria listed below a surprising number of persons can qualify for this category. At Perez & Associates we have considerable experience with petitions for persons of extraordinary ability having qualified persons is such diverse areas as restaurant development, auto mechanics, general business, art, and sports. If, after reading the list of criteria below, you think there may be a chance you can qualify as a person of extraordinary ability, consider requesting a Case e-Valuation to find out if you can take advantage of this category.
NO JOB OFFER OR LABOR CERTIFICATION (PERM) REQUIRED
One of the main advantages of qualifying under the EB-1(1) category as an alien of extraordinary ability is that a job offer is not required. Although a U.S. employer may petition for an EB-1(1) worker of extraordinary ability, a person can also petition for him- or herself (self-petition) without a job offer or a petitioning employer. This eliminates the need to find a U.S. employer before filing for permanent residence as an alien of extraordinary ability.
The other main advantage is that the U.S. labor market does not have to be tested. Because the labor market does not have to be tested a Labor Certification (PERM) is not required. This means that an alien of extraordinary ability need not go through the expense, time, and uncertainty associated with the Labor Certification (PERM) process before he or she can file for permanent residence.
Because the basis for this law is the desire to bring persons with extraordinary ability to the U.S. the petition must include evidence that the individual will continue to work in the United States in the area of his or her extraordinary ability.
QUALIFYING AS A PERSON OF EXTRAORDINARY ABILITY
To qualify as a person of extraordinary ability it must be shown that the foreign national’s accomplishments have been recognized and that the individual has received national or international acclaim for those accomplishments. The regulations permit a showing made through a single achievement, such as receipt of a major, internationally recognized award like a Nobel or Pulitzer Prize. Persons who have received other awards, not as notable, might also qualify, but he or she will have to show how the award in the particular field compares to a Nobel or Pulitzer Prize.
As mentioned above, very few persons qualify for extraordinary ability based on a one-time achievement. Most people qualify by showing that he or she satisfies at least three of the following:
receipt of lesser nationally or internationally recognized prizes or awards for excellence;
membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
published material about the person in professional or major trade publications or other media;
evidence that the person has judged the work of others in the field;
evidence of the person’s original contributions of major significance to the field;
authorship of scholarly articles;
display of the person’s work at artistic exhibitions or showcases;
evidence the person has performed in a leading or critical role for organizations that have a distinguished reputation;
evidence that the person commands high remuneration in relation to others in the field; or
evidence of commercial success in the performing arts.
If the above criteria do not apply, the regulations also allow for “other comparable evidence.”
DOWNLOAD EXTRAORDINARY ABILITY PDF
The EB-1(3) or multinational executive category of the immigration laws was created to allow the permanent transfer of executives and managers of companies located outside the United States to subsidiaries, affiliates, and branches in the United States. Persons eligible for this category are granted Permanent Residence and are not required to obtain a Labor Certification (PERM) before they can apply to become Permanent Residents of the United States. This means that multinational executives do not have to go through the expense, time, and uncertainty of the Labor Certification (PERM) process. The requirements are described below and are similar to the requirements for the Intracompany Transferee (L-1A) nonimmigrant category. This a great category because it is possible to obtain employment authorization in a few months and Permanent Residence (Green Card) for the employee and his or her family in less than a year.
In addition to our years of experience with multinational executive petitions, because of our knowledge of transactional matters Perez & Associates can also help you create a corporate structure that will allow you to qualify for the multinational executive category. If, after reviewing the requirements set out below you determine that you want to take advantage of the EB-1(3) multinational executive category please request a Case e-Valuation or contact us to set up an office conference.
There must be an actively operating company in a foreign country.
Proof: This requirement is established by providing copies of documents showing the active existence of the foreign company. These documents usually include copies of the original registration for the company, the most recent renewal of the registration, a letter from the foreign government confirming the active existence of the foreign company, copies of invoices from the foreign company, a copy of the foreign company's most recent financial statement, tax returns, letters of reference from customers, copies of advertisements and any other evidence tending to show that the foreign company actually exists. The foreign company must be actively involved in rendering services or producing goods for revenue. A duly registered company, if it is not doing any actual work, will not satisfy the L-1A requirements.
There must be an actively operating company in the U.S.
Proof: This requirement is established by providing copies of documents showing the active existence of the U.S. company. These documents usually include copies of the original registration, the most recent renewal of the registration, copies of invoices, a copy of the most recent financial statement, tax returns, copies of advertisements and any other evidence tending to show that the company actually exists and is actively operating. For a new U.S. company, the only requirements are evidence of incorporation, evidence that the U.S. company has secured business premises, and evidence of wire transfers or other deposits used to open up the business.
The company in the United States must be an affiliate, branch, parent or subsidiary of the foreign company. Any of the following ownership structures can be used to satisfy this requirement:
The foreign company owns 50% or more of the U.S. company;
The U.S. company owns 50% or more of the foreign company;
The same person owns 50% or more of both the U.S. company and the foreign company; or
The same persons own both companies in the same percentages.
Proof: Documentation evidencing the ownership of each company. These are usually stock certificates or their equivalent for both the foreign company and the U.S. company. Documentation relating to the U.S. company or branch will originate in the United States. These will be copies of the incorporation or registration documents, the stock certificates, and a copy of a lease or deed showing where the new business office is located.
The U.S. company must have secured business premises.
The business premises do not have to be large or fancy, but the business in the United States cannot be operated from a home address. As long as the office premises are adequate for the business they do not have to be fancy.
Proof: A lease of at least one year or evidence that business premises have been purchased.
The foreign national who is coming to the United States must have been employed in a managerial or executive capacity, or in a capacity requiring specialized knowledge, by the foreign company, outside the United States, for a at least one (1) year during the last three (3) years.
Proof: A letter from a director of the foreign company, letters from customers of the company confirming the position and length of time dealing with the person to be transferred to the U.S., a company tree showing where the person is on the tree, banking references and copies of receipts showing salary payments to the foreign national coming to the United States, a description of the person’s duties with the foreign company, and a C.V.
The foreign national must be coming to the United States to work for the United States company in a managerial/executive capacity. It must be shown that the business in the United States is large or complex enough to require the permanent transfer of a manager or executive to the United States. To determine if a business needs a manager or executive on a permanent basis Immigration will look at such things as the size of the business, the amount of sales or other business done by the business, the type of business, the nature of the work being done by the proposed manager or executive, the number of people the manager or executive will supervise, and the number of employees employed by the business.
The spouse and unmarried children under the age of twenty-one (21) of the manager and executive are also granted Permanent Residence (Green Cards).
Proof: Marriage licenses and birth certificates.
PLEASE NOTE: DOCUMENTS NOT IN THE ENGLISH LANGUAGE MUST BE ACCOMPANIED BY A COMPLETE ENGLISH TRANSLATION. WE DO NOT REQUIRE ANY ORIGINAL DOCUMENTS. COPIES, AS LONG AS THEY CAN BE CLEARLY READ, ARE SUFFICIENT.
DOWNLOAD MULTI-NATIONAL EXECUTIVES PDF
The immigration laws of the United States recognize that there is a shortage in the United States of nurses and physical therapists. Because of this, persons applying for Lawful Permanent Residence (Green Card) as nurses or physical therapists are able to do so more quickly than with other employment-based permanent residency applications. As explained below, while the process itself is quicker, there are special requirements that are not present in other employment-based categories. The only way to take advantage of the ability to proceed to Lawful Permanent Residency more quickly is by doing the process correctly. With our experience in this special area Perez & Associates can help you take full advantage of the special procedures set up for nurses and physical therapists.
NO LABOR CERTIFICATION REQUIRED
Because of the shortage of nurses and physical therapists in the United States applications based on these professions do not have to test the United States labor market and obtain a Labor Certification (PERM). This means that a nurse or physical therapist can apply for residency immediately without the expense, time, or uncertainty associated with the Labor Certification (PERM) process. Although nurses and physical therapists do not need a Labor Certification, they still need a petitioning United States employer, prepared to pay the prevailing wage for the geographic area where the nurse of physical therapist will work, to sponsor them.
THE VISA SCREEN
Since 1996 registered nurses and physical therapists must obtain a VisaScreen before they can obtain permission to work in the United States or become Lawful Permanent Residents. VisaScreen certificates establish that the registered nurse or physical therapist has completed professional education outside the United States that is comparable to United State education, the successful completion of professional examinations, and proficiency in the English language. Nurses must pass the NCLEX or CGFNS exams to receive a Visa Screen. The NCLEX exam is offered outside the United States.
For physical therapists the two approved credentialing agencies are CGFNS, through its subdivision International Commission on Healthcare Professionals (ICHP), and the Foreign Credentialing Commission on Physical Therapy (FCCPT).
Currently only the three following testing services have been approved for testing English competence: Educational Testing Services (ETS), Test of English for International Communication (TOEIC) Service International, and International English Language Testing System (IELTS). The required scores on each exam vary depending on the foreign national’s intended occupation. Physical therapists may not use TOEIC or IELTS. Graduates from a college, university, or professional training school in Australia, Canada (except Québec), Ireland, New Zealand, the United Kingdom, or the United States are exempt from the English language testing requirement.
While it is possible to submit an application for Lawful Permanent Residence (Green Card) before receiving the VisaScreen Certificate, the process for the VisaScreen must be well along because if the VisaScreen certificate is not available when the Citizenship and Immigration Services requests it the application will be denied.
A nurse or physical therapist applying for Lawful Permanent Residence in the United States must have an unrestricted license to practice as a nurse or physical therapist in the United States. A temporary license is acceptable as long as it is still valid or has been converted to a permanent license by the time the application is approved. Typically, this involves applying for a temporary license with a State licensing office during a visit to the United States and passage of the licensing exam for that State.
DOWNLOAD NURSES & PHUSICAL THERAPISTS PDF
DOWNLOAD PERMANENT EMPLOYMENT IN THE US PDF