Permanent Residency (Green Card)

 
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Central Component of Our U.S. Immigration Services 

Applying for permanent residency is a central focus of the U.S. immigration services that we offer to employers.  We prepare applications in the first, second, and third preference employment based green card categories:  

  • The first preference category (EB1) includes individuals with extraordinary ability, outstanding researchers, and multinational managers and executives.  
  • The second preference category (EB2) includes individuals with exceptional ability, individuals whose work is in the national interest of the U.S., and individuals holding an advanced degree or the equivalent and for whom an approved labor certification has been obtained.
  • The third preference category (EB3) includes individuals holding at least a bachelor’s degree or who have a minimum of two years of postsecondary education or training in a relevant occupation and for whom an approved labor certification has been obtained.

Individuals with Extraordinary Ability

An individual may qualify for a green card based on extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated by sustained national or international acclaim as evidenced through extensive documentation.  “Extraordinary Ability” is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor,” as proven by “sustained national or international acclaim.”  No offer of employment is required in this category, so an individual may self-petition.

For this EB-1 category, one may qualify by either:

Demonstrating a one-time achievement such as the receipt of a major internationally recognized award, such as a Nobel Prize or an Academy Award, or, on the basis of a career of acclaimed work in the field of endeavor.  If you are qualifying on the basis of a career of acclaimed work in the field of endeavor, you must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:

  1. Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
  3. Published material about you in professional or other major trade publications or major media. The materials must relate to your work in the field for which EB-1A classification is sought.
  4. Evidence of the beneficiary’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought.
  5. Evidence of one’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  6. Evidence of one’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  7. Evidence of the display of one’s work in the field at artistic exhibitions or showcases;
  8. Evidence that one has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
  9. Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;
  10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales;

Other comparable evidence if the above types of evidence do not readily apply to the foreign national’s occupations.  The overall evidence must demonstrate that his/her achievements in his/her field have been recognized by other experts or professional peers as extraordinary.


Outstanding Researchers

An employee may qualify as an Outstanding Researcher by demonstrating international recognition for outstanding achievements in a particular academic field and at least 3 years of experience in teaching or research in that academic area.  In addition, the sponsoring employer must demonstrate that they employ at least 3 full time researchers and have established a record of demonstrated research accomplishments. 

Examples of Documentary Evidence That A Person is an Outstanding Professor Or Researcher

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the alien's work in the academic field
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  • Evidence of original scientific or scholarly research contributions in the field
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Multinational Managers and Executives

Managers or executives of multinational companies are eligible for permanent residency. The Multinational Manager category applies to intra-company transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial or executive capacity. The multinational manager petition requires clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office.  Managerial and executive candidates typically enter the U.S. in L-1A or E-2 status, then apply for their green cards in the Multinational Manager category. 

Two types of managers are recognized by the USCIS: those who directly manage people and those who manage an essential function. Managers who manage people have direct reports who are professional grade employees - their direct reports are either degreed professionals or are managers themselves. Managers of an essential function must be at a senior level with respect to the function managed, must have substantial discretionary, day-to-day authority over the function managed, and must be primarily engaged in fulfilling management duties.  Managers must demonstrate their management level qualifications for their positions in the United States and with the qualifying organization abroad.  Project Managers who do not have direct reports may qualify in this category by meeting the criteria for managing an essential function of the company. 


 

The Labor Certification Process for EB2 and EB3 green card categories

 

Labor Certification (Stage 1)

Labor Certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. Labor Certification requires employer sponsorship of an applicant is required.  In addition employers are required to carry out a specific recruitment plan including placement of classified ads in newspapers, internet job boards, and in-house postings, to attempt to find qualified and available U.S. workers for the intended job.

Preparation of the Labor Certification application package is complex and will take more preparation time than the typical nonimmigrant (H or L) petition. When complete, the Labor Certification application is submitted electronically to a national Department of Labor (DOL) processing center. The date of submission of the online form will serve as the priority date for the entire permanent residency process. 


The DOL will review the Labor Certification application and may perform an audit of the application and request that specific documentation be submitted. The online system may randomly select cases for audit as well. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications will be returned to attorneys handling the case, and both the employer and the employee will be required to sign the approved application before it can be used in the second stage of the process. The PERM process may typically take several months to complete (less time if the sponsoring employer has an ongoing recruitment program in place for the position in question). 


I-140 Immigrant Petition (Stage 2) 

Once the labor certification application is certified, it provides the basis for the sponsoring employer to move to the second stage of the process and file an I-140 immigrant petition with the U.S. Citizenship and Immigration Service (USCIS). USCIS determines whether the foreign national meets the job requirements specified in the PERM Labor Certification. Processing times vary over time and also depend on other variables such as the Service Center jurisdiction.


I-485 Application for Adjustment of Status to Permanent Residency (Stage 3)

The I-140 petition provides the basis for the employees’ I-485 application for adjustment of status (AOS) to permanent residency. Employees, along with their dependents, can file their I-485 application with the I-140 or after the I-140 is filed; as long as their priority dates are current.

Priority Dates are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/bulletin/bulletin_1360.html

Along with the AOS application, applications for Travel Permission (Advance Parole) and Employment Authorization may also be filed for the employee and dependents.


With the approval of the AOS application, the employee and dependents become U.S. Permanent Residents. Due to the many variables that can affect timelines, it is difficult to generalize or predict the time required to complete the green card process. For planning purposes, a range of one to three years is common, but longer time frames apply in categories where the visa backlog is severe, e.g., second and third preference categories for individuals from India or China. 


 
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Alan Tafapolsky

415 344 3602
Alan.Tafapolsky@tsmimmigration.com