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EMPLOYMENT-BASED AND SELF-SPONSORED IMMIGRATION

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I-94 Card

Date of Arrival

Date Authorized Stay Expires

Manner of Entry (Visa Class)

Governs ability to stay in the U.S.

May 17, 2012

Nov. 16, 2012

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Two Arms of Employment-Based Immigration Law:

Nonimmigrant

Immigrant

H-1B

EB-1

EB-2

EB-3

E-3

Professional

Training

Temp. Visas

EB-5

H-2B

Misc.

H-3

EB-4

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Immigrant Visas: the “Green Card”

For foreign nationals who intend to reside permanently in the United States

Obtained through employment or family

Most categories are subject to quotas and the Visa Bulletin

(http://travel.state.gov/visa/bulletin/bulletin_1360.html)

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General Process for Obtaining a “Green Card”: LPR Status Through Employment

Foreign national obtains Nonimmigrant Working Visa

Employer files PERM Application with the U.S. Department of Labor

Employer files I-140 Immigrant Petition

with U.S. Citizenship & Immigration Services (“USCIS”)

If the foreign national is within the U.S., the foreign national files I-485 Application to Adjust Status with USCIS

(If outside the U.S., the foreign national must use Consular Process)

Requires current “Priority Date” and may take years -– many years ---

after approval of I-140 Petition!

Foreign national secures “Green Card” - Lawful Permanent Resident status (“LPR”)

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Employment-Based Choices

Options NOT requiring PERM or any recruitment

EB1: File I-140 Petition for:

Extraordinary Ability Foreign Nationals (8 C.F.R. §204.5(h))

Outstanding Researchers / Professors (8 C.F.R. §204.5(i))

EB2: File I-140 Petition for:

National Interest Waiver (8 C.F.R. §204.5(k)(4)(ii))

See also: In re New York State Department of Transportation, 22 I.&N. Dec. 215 (1998)

Schedule A Group II:

Scientists of Exceptional Ability (20 C.F.R. §656.5(b))

Options requiring PERM or any recruitment

EB2: Foreign National with Advanced Degree & Offered Position requiring same (8 C.F.R. §204.5(k))

EB3: Foreign National with Bachelor’s Degree, Associate’s Degree, or two years of experience & Offered Position requiring same

(8 C.F.R. §204.5(l))

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What is a “Priority Date”?

Review: The “Priority Date” is the cutoff date that determines a given individual’s eligibility to seek permanent resident status, based upon the numerical quota for that particular category

For family-based cases, the Priority Date is the filing date of the Immigrant Visa Petition (Form I-130).

For employment-based cases, the Priority Date is the filing date of either the PERM application (with the U.S. DOL) or the I-140 Immigrant Petition (with USCIS), depending upon the classification sought.

If the Priority Date is before the date listed in current U.S. Department of State Visa Bulletin, the foreign national is eligible to “Adjust Status” (if in U.S.) or process an immigrant visa abroad (“Consular Processing”).

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Excerpts from Visa Bulletin July 2015

Employment- Based	All Chargeability Areas Except Those Listed	CHINA: Mainland- born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01OCT13	01OCT08	C	C
3rd	01APR15	01SEP11	01FEB04	01APR15	U
Other Workers	01APR15	01JAN06	01FEB04	01APR15	U
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted Employment Areas/ Regional Centers and Pilot Programs	C	01SEP13	C	C	C

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The “Green Card” Three-Step Dance

Depending on the Employment Based route that is pursued and if the foreign national is impacted by retrogression, this is either a 1, 2 or 3 step process:

Step 1: The employer files the “PERM” application with the United States Department of Labor(“DOL”) (if PERM is required).

If no retrogression, can file steps 2 & 3 at the same time.

Step 2: The employer files the I-140 Immigrant Petition with the United States Citizenship and Immigration Service (“USCIS”).

Step 3: The foreign national files his/her and his/her family’s I-485 Applications for Permanent Residence, I-765 Application for Employment Authorization, and I-131 Application for Advance Parole directly with the U.S.C.I.S.

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EB-1 Foreign Nationals of Extraordinary Ability

8 C.F.R. §204.5(h)

Comments:

If no visa retrogression – 1 step process

PERM Application Step NOT required

Foreign national can self-petition

Beware of Kazarian v. USCIS, 596 F.3d 1115, C.A. 9 (Cal.) March 4, 2010 (No. 07-56774)

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EB-1 Foreign Nationals of Extraordinary Ability

8 C.F.R. §204.5(h)

Threshold requirements:

(i) Foreign national who seeks to enter the United States in the sciences, education, business or athletics fields: demonstrated by sustained national or international acclaim & achievements have been recognized in the field through extensive documentation;

(ii) Foreign national seeks to enter the United States to continue work in the area of extraordinary ability; and

(iii) Foreign national entry to the United States will substantially benefit prospectively the United States.

Note: Can be used for “rising stars” although intended for one of the small percentage who have risen to the very top of their field of endeavor.

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EB-1 Foreign Nationals of Extraordinary Ability

8 C.F.R. §204.5(h)(3) Proving National and/or International Acclaim

Regulatory requirements: Foreign national must provide evidence of a one-time achievement (that is, a major, internationally recognized award such as an Oscar/Nobel Prize) or at least three of the following ten:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Membership in associations in the field, which require outstanding achievements of their members, as judged by recognized experts;

3. Published material about the FN in professional or major trade publications;

4. Participation, either individually or on a panel as a judge of the work of others in the same or allied field;

5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field (use testimonial letters);

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EB-1 Foreign Nationals of Extraordinary Ability

8 C.F.R. §204.5(h)(3) Proving National and/or International Acclaim

6. Authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Work in the field at artistic exhibitions or showcases;

8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Command of a high salary or other significantly high remuneration for services, in relation to others in the field; or

10. Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

PLUS, pursuant to Kazarian, the foreign national must also survive a final “merits determination.”

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EB-1 Outstanding Researcher/Professor

8 CFR §204.5(i)

Comments:

If no visa retrogression - 1 step process

PERM Application Step NOT required

HOWEVER: Cannot Self-Petition

Employment must either be for university/medical school (tenure track) teacher or permanent researcher with such institutions OR in a department/ division of private employer where there are at least 3 full time researchers

Cannot be used for post-docs

Beware of Kazarian v. USCIS, 596 F.3d 1115, C.A. 9 (Cal.) March 4, 2010 (No. 07-56774)

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EB-1 Outstanding Researcher/Professor

8 CFR §204.5(i)

Requirements: Researcher/Professor, recognized internationally as outstanding in field. Evidence consists of at least 2 of following:

Receipt of major prizes or awards for outstanding achievement in the academic field;

Membership in associations which require outstanding achievements;

Published material about the FN’s work in professional or major trade publications;

Participation as editor/judge of work of others;

Original scientific contributions of major significance in the field; and/or

Authorship of scholarly books/ articles in field (in scholarly journals with international circulation; and

At least three years of experience in teaching and/or research in academic field.

PLUS, pursuant to Kazarian, the Foreign National must also survive a final “merits determination.”

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EB-2 National Interest Waiver

8 C.F.R. §204.5(k)(4)(ii)

In re New York State Department of Transportation, 22 I.&N. Dec. 215 (1998)

Requirements:

Research position:

Work is in an area of substantial intrinsic merit;

The benefits of the work is national in scope; and

The foreign national’s employment serves the national interest substantially more than would an available U.S. worker.

Physician in HPSA or MUA area:

Need full-time employment contract (or evidence of private practice);

Need letter from federal agency or state’s Dept. of Public Health attesting that work is or will be in the public interest; and

Must work in qualifying position for at least 5 years from approval date of Form I-140

Comments:

- PERM not required

Foreign national can self-petition

Difficult and very discretionary

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EB-2 & EB-3 PERM

8 C.F.R. §§204.5(k)(l)

Requirements:

EB-2: Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree.

EB-3: Skilled workers, professionals

Professional means a qualified foreign national who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the profession.

Skilled worker means a foreign national who is capable, of performing skilled labor (requiring at least two years training or experience).

Comments:

Most widely used categories for obtaining permanent residency

Indian and Chinese clients will push for EB-2 instead of EB-3 filing (because of severe retrogression)

Remember: it is the standard requirements for the job with the petitioning employer that controls, assuming the foreign national possesses the required qualifications

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(EB-2) PERM Via Special Recruitment – Faculty

20 CFR §656.18

Requirements:

Only “some” classroom teaching is required;

Need to prove university pursued (normal) competitive recruitment & selection process;

Application must be filed within 18 months of foreign national’s selection; and

Recruitment must (only) include one journal ad plus “normal recruitment.”

Comments:

Perfect process where recruitment was appropriately conducted

Hard to get denial unless deadlines are missed

Less expensive advertising than PERM

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Schedule A, Group II

20 CFR §656.5(b)

Requirements (for scientists):

1) During past year, work must have been in area of exceptional ability;

2) Must intend to practice the “same science”; and

3) Must establish “widespread acclaim and international recognition” per two of the six qualifiers listed under outstanding researcher.

Note: Similar processing requirements for Schedule A Group I occupations (i.e. Registered Nurses, PTs)

Comments:

PERM Application (Labor Certification) not required to be submitted to the DOL (submit ETA 9089 directly to USCIS)

NO LONGER A SEPARATE CATEGORY

- Employer must be Petitioner

Don’t Forget Posting Notice

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Other Employment Based Immigrant Visas

Other workers: Unskilled Labor

8 C.F.R. §204.5(l)

Requires PERM labor certification; for jobs that require less than two years experience/training

Fourth Preference: Special Immigrants/Religious Workers

8 C.F.R. §204.5(m)

Limited to 10,000 immigrant visas per year and is rarely subject to retrogression. To qualify, a foreign religious worker/special immigrant must have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States for at least two years.

Fifth Preference: Employment Creation-Investors

8 C.F.R. §204.6

This category is available to the self-employed who are willing to create a business in which they have invested at least $1 million (or $500,000 if in “targeted” areas), which business will employ at least 10 United States citizens and/or Lawful Permanent Resident workers unrelated to the owner.

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“EB-5” Immigrant Investor Option: Job Creation Through Investing in the U.S.

Purpose: To obtain a green card either via “regular” investment or via a “regional center”

Visa category: EB-5

Key Points:

10,000 Investor Visas are available each year:

In FY 2011, 1,563 I-526 petitions were approved

5,000 visas are set aside for Regular Investors

Up to 5,000 visas are set aside for certified "Regional Center" Investors

Increasingly being used as an immigration vehicle

There are approximately 190 certified Regional Centers in the U.S. and new ones are being created every day.

BEWARE: Investigate Regional Centers carefully! Due diligence is key.

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Pursuing the "EB-5" Visa as a "Regular" Investor: Six Requirements

The investor must invest:

$500,000 if in a targeted employment area ("TEA")

$1,000,000 if not in a TEA

The investor must invest in a "new" commercial enterprise:

Establish a new business;

Restructure/reorganize an existing business; OR

Expand an existing business or invest in a "troubled" business and retain all existing jobs.

The investor’s capital must be placed "at risk."

The investor’s capital must be obtained through lawful means.

The investor’s new commercial enterprise must create at least 10 full-time positions for U.S. workers and thereby benefit the U.S. economy.

The investor must manage the enterprise OR be involved in policy decisions.

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Diversity Lottery

The Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.

Entries for the DV-2014 Diversity Visa lottery began on October 2, 2012.

Applicants may access the electronic Diversity Visa entry form at:

www.dvlottery.state.gov during the registration period.

Must have the equivalent of a U.S. high school degree or two years specialized

work-related training.

If subject to Immigration “bars” individual is NOT eligible.

(There is no waiver for DV cases.)

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Adjustment of Status vs. Consular Processing

Adjustment of Status:

Adjustment of status is the process by which individuals who are already in the United States obtain Permanent Resident Status (get a “Green Card”) after completing certain steps in the immigration process.

Consular Processing:

Immigrant Visa (IV) processing abroad (Consular Processing) is a process by which an individual with an approved Immigrant Petition and Priority Date may apply at a U.S. embassy or consulate abroad for issuance of an Immigrant Visa.

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