Permanent immigration to the United States is divided into three major categories: employment-based, family-sponsored, and special programs. Employment-based immigration is divided into various categories and subcategories, distinguished principally by the level of skill and accomplishment possessed by the intending immigrant. Family-sponsored immigration is divided into several categories based on the immigrant status of the sponsor (permanent resident or citizen) and the nature of the family relationship. The employment-based and family-sponsored subcategories are known as "preferences." Special programs include asylum, the Diversity Lottery, the Nicaraguan Adjustment and Central American Relief Act (NACARA), and the Cuban Adjustment Act. A complicated allocation system based upon category and country of origin determines how many employment-based and family-based immigrant visas are available on an annual basis. Visa availability is monitored by the U.S. Department of State ("USDOS") and published monthly in the Visa Bulletin.
Individuals may be "sponsored" for permanent residence by employers based upon an offer of permanent, full-time employment. In some instances involving individuals of extraordinary ability and international recognition, it is possible to self-petition for permanent residence.
Three Steps to a Green Card
Step 1: Most persons who obtain permanent resident status based upon employment must first obtain a certification from the Secretary of Labor that their employer has tested the labor market and has been unable to find qualified U.S. workers. This process, which is known as labor certification, usually involves the placement of two newspaper advertisements as well as posting of the job's availability both at the job site and with the local unemployment office; and in the case of jobs which require a Ph.D. or M.D., evidence of recruitment in professional journals or newspapers with a national circulation such as The New York Times or The Wall Street Journal. Thereafter, the employer must submit a post-recruitment report to the Department of Labor ("DOL") identifying applicants and the lawful, objective, job-related reasons for their rejection. It currently takes approximately nine to 14 months to obtain labor certification from the DOL in many jurisdictions. However, in some areas, such as California, New York, and New Jersey, it can take three years for a labor certification application to be decided. Once labor certification has been granted, an immigrant visa petition is filed with the U.S. Citizenship and Immigration Services ("USCIS"). Immigrant visa petitions usually are adjudicated within 180 days in most jurisdictions but can take over 12 months in others. Thereafter, the applicant can file for permanent resident status in the United States or at a Consulate abroad.
Step 2: Following certification by the DOL, the green card process continues with: (a) an immigrant visa petition (filed by the employer) and (b) either an application for adjustment of status (filed by the foreign national) or immigrant visa processing by the foreign national at a U.S. Consulate abroad. The immigrant visa petition is filed with the U.S. Citizenship and Immigration Services ("USCIS") and its purpose is to qualify the foreign national as eligible to apply for permanent residence in one of the employment-based immigration categories based upon the foreign national's credentials and the job offer.
Step 3: The adjustment of status application is the foreign national's application for clearance as a permanent resident, filed within the United States. Under current law, the foreign national may file the application concurrently with the employer's immigrant visa petition. While an adjustment application is pending, the foreign national and any dependents are entitled to apply for an Employment Authorization Document ("EAD"). The foreign national may also apply for a travel document called "Advance Parole," which allows the foreign national and any dependents to enter the United States without a valid visa while the adjustment application is pending. Upon approval of the adjustment application, the principal foreign national and any accompanying dependents will be processed for the creation of their actual "green cards," which will be sent to them by mail. The alternative to adjustment of status is for a foreign national to apply for permanent residence at a U.S. Consulate overseas based upon an approved I-140 petition. This is known as "Consular Processing."
EB-1A Persons of Extraordinary Ability
Some persons can receive permanent resident status based upon employment without first obtaining labor certification from the DOL. Those persons file an immigrant visa petition immediately with the USCIS. This saves substantial time and expense for the employer and the employee. Moreover, under limited circumstances, it is possible to obtain permanent resident status without either labor certification or an offer of employment.
The EB-1A category is reserved for the absolute "best and brightest," the small percentage who have risen to the highest levels in their fields of endeavor and whose achievements have been recognized by sustained national or international acclaim. No employer sponsorship is needed for this category, provided that the individual can prove that he or she intends to continue to work in the United States in the area of expertise. However, sponsorship by an employer typically strengthens the chances of success. No labor certification is required. This category closely corresponds to the O-1 nonimmigrant visa category.
You must meet three out of the 10 listed criteria below to prove extraordinary ability in your field:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence.
Evidence of your membership in associations in the field which demand outstanding achievement of their members.
Evidence of published material about you in professional or major trade publications or other major media.
Evidence that you have been asked to judge the work of others, either individually or on a panel.
Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.
Evidence of your authorship of scholarly articles in professional or major trade publications or other major media.
Evidence that your work has been displayed at artistic exhibitions or showcases.
Evidence of your performance of a leading or critical role in distinguished organizations.
Evidence that you command a high salary or other significantly high remuneration in relation to others in the field.
Evidence of your commercial successes in the performing arts.
Neither an offer of employment nor a labor certification is required for this immigrant visa classification. However, the immigrant visa petition must be accompanied by clear evidence that the applicant is coming to the United States to continue to work in his or her area of expertise. Such evidence may include proof of prearranged commitments such as contracts or letters from prospective employers, or a statement from the applicant detailing plans on how he or she intends to continue his or her work in the United States. Although this visa category is available only to "those who have risen to the top of their field of endeavor," many cases are approved on this basis.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.