Your company successfully obtained labor certification for a valued employee and must now proceed to the next steps of the permanent residence process or the foreign individual may be able to proceed without an employer sponsor.
What is an Immigrant Petition?
Generally, the first step in obtaining permanent residence (“green card”) on behalf of a foreign individual is labor certification. Labor certification is the process of proving that there are no qualified U.S. workers for the position being offered to the foreign individual. If the labor certification application is certified by the Department of Labor, then the U.S. employer must file an Immigrant Petition for Alien Worker (form I-140). The Immigrant Petition is filed by the U.S. employer with the USCIS in order to obtain an immigrant visa for the foreign individual.
Does the Foreign Individual Qualify?
In order to qualify to file an Immigrant Petition, both the position offered and the foreign individual must meet the eligibility criteria of an employment based (EB) immigrant visa category. There are five EB immigrant visa categories under which the foreign individual may apply each with different requirements. Here, we discuss the EB second preference (EB-2) category.
The foreign individual may qualify for the EB-2 category if s/he is a member of the professions holding an advanced degree or has exceptional ability.
The position must require at least a U.S. master’s degree or higher (or a foreign equivalent degree) and the foreign individual must possess a U.S. master’s degree or higher (or a foreign equivalent degree) or a U.S. bachelor’s degree (or a foreign equivalent degree) plus 5 years of progressive post bachelor degree experience.
The foreign individual’s ‘exceptional ability’ must be in the sciences, arts or business and will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the U.S. ‘Exceptional ability’ means a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.
To be considered a person of exceptional ability the foreign individual must meet 3 of the following criteria:
- Degree diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability.
- Letter(s) from current or former employers documenting at least 10 years of full-time experience.
- License to practice the profession or certification for a particular profession or occupation.
- Evidence that s/he has commanded a salary or other remuneration demonstrating exceptional ability.
- Membership in a professional association(s).
- Recognition of achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.
How Does the Foreign Individual Acquire an Immigrant Visa Number?
Typically, the U.S. employer files an Immigrant Petition, certified Labor Certification and a letter in support along with required documentation with the USCIS Service Center. Once the Immigrant Petition is approved by the USCIS, it is forwarded to the National Visa Center (NVC).
National Interest Waiver
Normally, the EB-2 Immigrant Petition must be accompanied by a certified labor certification. The USCIS may waive the requirement for a certified labor certification if it is in the national interest of the United States. This is termed a ‘national interest waiver’. Both advanced degree and exceptional ability positions qualify for a national interest waiver. However, a national interest waiver is usually granted to the foreign individual that has exceptional ability and whose employment would greatly benefit the United States. The foreign individual seeking a national interest waiver may self-petition (a U.S. employer is not required to file the Immigrant Petition). In this instance, the foreign individual files an Immigrant Petition, a letter in support, (with a statement supporting a national interest waiver claim), the required documentation and a labor certification (not certified) with the USCIS Service Center.
The Immigration and Nationality Act (INA) limits the number of employment based immigrant visas that are issued each year based on the EB preference category. Each preference category is assigned a number of immigrant visas. In addition, there is a limit to the percentage of immigrant visas that can be allotted to each country in a year. Since the demand for immigrant visas is higher than the limited number and greater for some countries, an immigrant visa ‘waiting list’ forms. The foreign individual’s place on the ‘waiting list’ is determined by their ‘priority date’. The ‘priority date’ is either the date the petition was properly filed with the USCIS or the date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required). As such, the foreign individual’s EB preference category, ‘priority date’ and country of origin will determine the time the Immigrant Petition will remain at the NVC until an immigrant visa number becomes available. The wait time can be years.
How Does the Foreign Individual Acquire an Immigrant Visa?
Once the immigrant visa becomes available, the NVC requires that the foreign individual file an immigrant visa application along with required documentation. The NVC performs a background check on the foreign individual. Once the immigrant visa application and documentation are received and the background check is complete and the results are satisfactory, the NVC forwards the petition and all other material to the United States consulate nearest the foreign individual’s foreign residence. The United States consulate conducts an interview and issues the immigrant visa allowing the foreign individual to legally enter the United States to live permanently. Upon issuance of the immigrant) visa, the foreign individual must enter the United States within 6 months. After entry, the foreign individual will be issued a permanent residence card allowing them to live permanently in the United States.
If the foreign individual entered the United States on a non-immigrant visa (i.e. H-1B visa) and is currently in the United States legally, s/he can file an application for permanent residence, travel document and work permit with the USCIS Service Center. The USCIS will issue receipts for each application then schedule the foreign individual to be fingerprinted at the closest USCIS District Office. The USCIS performs a background check on the foreign individual. Once the background check is complete and the results are satisfactory, the USCIS approves the application for permanent residence allowing the foreign individual to live permanently in the United States.
The Immigrant Petition process is complicated and time-consuming. We suggest the retention of an experienced immigration attorney well versed in the complexities of the process. The attorneys at CLG can efficiently guide you through each step of the process with the end goal of approval of the Immigrant Petition as quickly as possible.
If you are unfamiliar with what is required, you may wish to take a moment to learn more about the employment (immigrant) visa process, to review the requirements for the employment (immigrant) visa, the associated immigrant visa fees and the timelines for the employment (immigrant) visa process.
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