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Employment Based Immigrant Visas (Green Cards)

Employment Based Immigrant Visas

Once an organization determines that they would like to keep the non-immigrant employee on a permanent basis, they may apply for an immigrant visa for the employee. Most of the employment based immigrant visas connect the employee to that employer at that job and geographical site until the process is completed or nearly complete, depending on the type of processing selected. The process can be divided into 2 or 3 steps depending on whether an employee is Labor Certification exempt from the Department of Labor (DOL).

Labor Certification:

Labor Certification is a complex process and usually the initial step for applying for a permanent residence. It is required for most of the employment sponsored immigrant visa applications. It is not required for intracompany transferee managers (L-1A) or other labor certification exempt categories. A corporation must prove to the Department of Labor that it has conducted the required recruitment, there are no US workers ready, willing and qualified to perform the described job in the specific job location. It is employer, employee, job duty and geographic location specific. All cases are initially filed with the local State Workforce Agency (SWA) then forwarded to the US DOL Regional Office. In 2002, a law was passed that may permit extensions of H-1B status beyond the six (6) year maximum if a Labor Certification is filed before the end of the employee's fifth year on an H-1B. There are two types of Labor Certifications:

  • Reduction in Recruitment (RIR) - Utilized for "shortage occupations" where the US market is lacking entry-level people in the field. Requires 6 months worth of prior general recruitment including advertising in print, utilization of headhunters/recruiters, Internet, and internal company media before the application can be filed.
  • Traditional Labor Certification - A uniquely qualified skilled applicant with a combination of real world and educational experience. Advertising is completed after the local SWA reviews the filing (including proposed recruitment) and then issues its recruitment instructions, usually requiring an advertisement in a major trade journal or newspaper of general circulation, along with state job bank listing and an internal company job posting. The case still has to go to the Regional DOL for final approval. Time and experience gained while previously working directly for the sponsoring employer (not as a contract employee) usually cannot be used to disqualify a US worker. This path is very time consuming and an employee usually must have at least 4 years remaining on their nonimmigrant status for most regions in the country.

Immigrant Worker Petition:

Required for all employer-sponsored employment based cases. Application is filed with the Citizenship and Immigration Services (CIS) Regional Service Center (RSC). This is the second step of the employment based visa process for Labor Certification applicants. However, some categories (below) are Labor Certification exempt and can be filed directly with the US CIS. Labor Certification exempt cases include:

  • Extraordinary Professionals - Usually utilized for Executives or Senior Managers with a Master Degree or higher and strong evidence of sustained international peer preeminence in the field as evidenced by many of the following: major awards, material published about the individual, individual's scholarly publications, individual's review of other authors, public display of individual's achievement, leading role in other organizations, and/or typically commands a relatively high salary. This may be sponsored by the employer or the candidate may sponsor himself/herself.
  • Outstanding Researchers - Unique internationally preeminent scientific researchers, usually with a Ph.D. Degree in the field and strong evidence of international preeminence and original scholarly contributions, generally proven by several of the following: refereed publications, selection for panel seminar, peer scholarly presentations to peers, patents, employee's work cited by other authors, many international letters of support by other preeminent scientists in the field, employee reviewing other scientist's articles for publication, and awards or prizes. Must prove the individual has risen internationally to the top of his/her field -- attained international preeminence for their breakthrough pioneering work in their field. This must be sponsored by a US employer with a qualified research operation.
  • Intracompany Managers and Executives - Available to multinational intracompany Managers, Executives or Officers who have at least one (1) year of experience as a Manager, Executive or Officer with a majority owned parent, subsidiary or affiliate company outside the US, sometime during the last three years. The individual must be coming to the US into a Manager, Executive or Officer position. Most applicants will be in the US on an L-1A Visa. Any factual situation other than direct company subsidiary should be referred for review and instruction by English & van Horne, P.C. This must be sponsored by the company.
  • National Interest - Available to Master Degree and above professionals who are significantly above their peers in terms of both achievements and recognition for US work. Work described must substantially benefit the US national interest. Letters of support from a US governmental agency, on their letterhead, is generally preferred. Letters of support from other professionals in the field is required. This may be sponsored by the employer or the candidate may sponsor himself/herself.

Immigrant Visa Petition:

This is the third and final stage of the green card process. It is important that both employee and management remember that, generally, employees must remain in valid nonimmigrant status until this process is approved or interim work/travel authorization (if available) is secured and maintained. The employee's dependent family is now included in the process. At this stage, CIS is concerned with whether the employee and/or the family have any personal impediments in their background which would excluded them from the US under the law (criminal, terrorist, contagious diseases, serious immigration violations, etc.). Children who reach twenty-one (21) years of age before processing were traditionally not eligible, but given recent changes in the law this may no longer be an impediment in some cases. There are two alternative venues or choices of forum for the visa issuance processing:

  • Adjustment of Status - This involves filing all paperwork through the appropriate CIS Regional office in the US. The employee and family MUST be residing and physically present in the US (no Canadian or Mexican commuters) to be eligible. Work and travel authorization is available upon application and approval for all members of an employee's family as long as the case is pending. Generally, the employee must remain in valid nonimmigrant status until the work authorization is approved. This stage may be filed, in many instances, at the same time the Immigrant Worker Petition is filed.
  • Consular Processing - This method involves filing all paperwork through the US Embassy/Consulate abroad of the employee's citizenship. This method is not recommended for every employee, and especially not for citizens of war torn or high visa fraud countries. The employee and his/her family MUST maintain valid US status until the process is completed at final interview. An interview and personal appearance at the Consulate abroad for the entire family are required. Usually, the employee and family can not return to the US unless and until their visas are approved and issued.
 
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