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YVETTE LEE LAW GROUP

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Green Card (Employment)

PERM Labor Certification (“PERM LC”)

Overview

In an effort to streamline the processing of labor certification, the Department of Labor implemented a system known as PERM (Program Electronic Review Management), effective March 28, 2006. The form used for the PERM Labor Certification is ETA Form 9089 Application for Permanent Employment Certification.

PERM Labor Certification (PERM LC) is often the first step in employment-based green card case. In the PERM LC process, the Department of Labor is ensuring that foreign workers seeking permanent residency based on employment are not displacing equally qualified U.S. workers.

Next Steps

After the PERM LC is certified, the next stages are filing an employment-based immigrant petition (Form I-140) with the USCIS by a U.S. employer, and filing an adjustment of status application (Form I-485) by the foreign worker, respectively. 

 

First Preference (EB-1)

An EB-1 visa is a category for permanent residency to certain individuals that are considered “Priority Workers.” There are three categories within EB-1 that an individual can be eligible for:

 

  • Extraordinary Ability

  • Outstanding Professors and Researchers

  • Multinational Manager or Executive

PERM Labor Certification (LC) is not required for this category as long as the beneficiary qualifies for the descriptions below.

EB-1A: Alien with Extraordinary Ability

  • An Alien with Extraordinary Ability is an individual that has risen to the very top of the field of endeavor in the sciences, arts, education, business, or athletics through sustained national or international acclaim. For example, receiving a world class award such as the Nobel Prize would fulfill a criterion; or
     

  • Must be able to demonstrate extraordinary ability In order to satisfy the requirement, the individual must fulfill at least three of the following criteria:
     

    • Receipt of lesser nationally or internationally recognized prizes or awards for excellence

    • Membership in associations in the field which demand outstanding achievement of their members

    • Published material about you in professional or major trade publications or other major media 

    • Have been asked to judge the work of others, either individually or on a panel

    • Have original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field

    • Authorship of scholarly articles in professional or major trade publications or other major media 

    • Proof that your work has been displayed at artistic exhibitions or showcases 

    • Performance of a leading or critical role in distinguished organizations 

    • Commanding high salary or other significantly high remuneration in relation to others in the field

    • Commercial successes in the performing arts
       

  • No Employer Needed.

EB-1B: Outstanding Professional and Researchers

  • Must demonstrate international recognition for outstanding achievements in a particular academic field.
     

  • Will need at least three years of experience in teaching or researching in that academic field.
     

  • Must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
     

  • Other requirements that must be satisfied, at least two, include:
     

    • Receipt of major prizes or awards for outstanding achievement 

    • Membership in associations that require members to demonstrate outstanding achievement 

    • Published material in professional publications written by others about the alien's work in the academic field

    • Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

    • Original scientific or scholarly research contributions in the field 

    • Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

EB-1C: Multinational Executives and Managers

  • Must have been employed outside the United States in the three years preceding the petition for at least one year by a firm or organization, and you must be seeking to enter the United States to continue service to the same employer, affiliate, or a subsidiary of the employer.
     

  • Employment must have been outside the United States in a managerial or executive capacity.
     

  • The petitioning employer must be a U.S. employer.
     

  • Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
     

  • No labor certification, but a job offer by the U.S. employer, is required.

 

Second Preference (EB-2)

Individuals can petition in this category if they are holders of an advanced degree (Master’s or Ph.D.) or has a Bachelor’s with minimum 5 years of experience. This category also applies to individuals who are foreign nationals with exceptional ability. The subcategories are as follows:

  • Advanced Degree

  • Exceptional Ability

  • NIW - National Interest Waiver

Advanced Degree

  • The job must require an advanced degree and you must possess that such degree or its equivalent.
     

  • Advanced degree is a Master’s, Doctorate’s, or a Baccalaureate degree plus five years progressive work experience in the field.
     

  • A full-time job offer and labor certification is required, see labor certification below.

Exceptional Ability

  • Must be able to show exceptional ability in the sciences, arts, or business. The meaning of exceptional ability is the degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
     

  • At least three of the following must be fulfilled as well:
     

    • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to  your area of exceptional ability

    • Letters documenting at least 10 years of full-time experience in your occupation 

    • A license to practice your profession or certification for your profession or occupation

    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability 

    • Membership in a professional association(s)

    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations 
       

Other comparable evidence of eligibility is also acceptable.

NIW - National Interest Waiver

  • A request for the Labor Certification to be waived because the job is in the interest of the United States.
     

  • Jobs that qualify for the waiver are not defined statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national.
     

  • At least three of the following must be fulfilled as well:
     

    • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to  your area of exceptional ability

    • Letters documenting at least 10 years of full-time experience in your occupation 

    • A license to practice your profession or certification for your profession or occupation

    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability 

    • Membership in a professional association(s)

    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations 

    • Other comparable evidence of eligibility is also acceptable.
       

  • Evidentiary Criteria under Matter of Dhanasar:
     

    • The foreign national’s proposed endeavor has both substantial merit and national importance

    • The foreign national is well-positioned to advance the proposed endeavor, and

    • On balance, it would be beneficial to the U.S. to waive the job offer and Labor Certification requirement.

Family members of EB-2 Beneficiary

Spouse and unmarried children under the age of 18 maybe admitted to the United States in E-21 and E-22 immigrant status, respectively.​

 

Third Preference (EB-3)

Individuals are eligible in this category if they are a skilled worker or professional. Skilled workers must be obtaining a full time job where it requires a minimum of two years of training or experience. Professionals must possess a U.S. baccalaureate degree or foreign equivalent; whereas “other workers” are individuals who perform unskilled labor requiring less than two years of experience. The sub-categories are as follows:
 

  • Skilled Workers

  • Professionals

  • Unskilled Workers (Other Workers)

Skilled Workers

  1. Must be able to demonstrate at least two years of job experience or training.

  2. Must be performing work for which qualified workers are not available in the United States.

  3. A full-time job offer and labor certification is required, see labor certification below.

Professionals

Professionals

  1. Must be able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation.

  2. Must be performing work for which qualified workers are not available in the United States

  3. Education and experience may not be substituted for a baccalaureate degree.

  4. A full-time job offer and labor certification is required, see labor certification below.

Unskilled Workers (Other Workers)

Unskilled Workers (Other Workers)

  1. Must be capable, at the time the petition is filed on your behalf, or performing unskilled labor (requiring less than two years training of experience), that is not of temporary or seasonal nature, for which qualified workers are not available in the United States.

  2. A full-time job offer and labor certification is required, see labor certification below.

Family members of EB-3 Beneficiary

Spouses and unmarried children (under the age of 18) may be admitted along with the EB-3 petition.

 
 

Fifth Preference (EB-5)

Investors in a new commercial enterprise in the U.S. can apply for an EB-5 visa. Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
 

  • A sole proprietorship

  • Partnership (whether limited or general)

  • Holding company

  • Joint venture

  • Corporation

  • Business Trust or other entity, which may be publicly or privately owned

A new commercial enterprise is considered to be:

  • Established after Nov, 29, 1990, or

  • Established on or before Nov. 29, 1990, that is:

    • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or

    • Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Job Creation Requirements

  • Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the immigrant investor’s admission to the U.S. as a Conditional Permanent Resident.
     

  • Create or preserve either direct or indirect jobs:
     

    • Direct jobs – identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.

    • Indirect jobs – have been created collaterally or as a result of a capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
       

  • A qualified employee is either a U.S. citizen, permanent resident or other immigrant authorized to work in the U.S. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation.
     

  • Full time employment is considered a minimum of 35 working hours per week.
     

  • Job-sharing arrangement can be done where two or more qualifying employees share a full-time position if the hourly requirement per week is met.

Capital Investment Requirements

  • Minimum qualifying investment in the U.S. is $1,000,000.
     

  • If the targeted employment area has high-unemployment rates or is a rural area then the minimum qualifying investment is $500,000.
     

  • High unemployment is considered to be at least 150 percent of the national average rate in the targeted area.
     

  • Rural area is any area outside a metropolitan statistical area or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

Conditional Green Card 

If I-526 Petition is approved, you will receive a conditional green card. A conditional green card is entitled to  temporary residence for two years. You must have created 10 new full-time jobs for citizens or permanent residents in your business that you have invested in two years of conditional residence in order to obtain all evidence for your I-829 application.