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Permanent Residence

Employment-Based Permanent Residence

Lawful permanent resident status allows an individual to permanently reside and work in the United States.  There are multiple employment-based immigrant visa categories by which an individual may become a United States permanent resident.  United States immigration law allocates employment-based immigrant visa numbers among first preference priority workers (EB-1), second preference advanced-degree professionals or persons of exceptional ability (EB-2), third preference professionals, skilled workers and other workers (EB-3), fourth preference special immigrants (EB-4) and fifth preference investor visas (EB-5).  Some of these categories require the submission of a Labor Certification/PERM application and some do not.

 

For most individuals sponsored through the employment-based process, permanent residence will consist of three distinct stages: (1) a Labor Certification/PERM application submitted to the United States Department of Labor; (2) the Form I-140 Immigrant Petition for Alien Worker submitted to United States Citizenship and Immigration Services; and (3) either (i) the Form I-485 Application to Register Permanent Residence or Adjust Status submitted to United States Citizenship and Immigration Services or (ii) Immigrant Visa Processing completed at a United States Embassy or Consulate abroad.   

 

If an individual qualifies for a preference category that does not require submission of a Labor Certification/PERM application, the permanent residence process will consist of two stages.  Under these circumstances, the permanent residence process will begin with submission of the Form I-140 Immigrant Petition for Alien Worker.  Employment-based categories that do not require the Labor Certification/PERM process include:

 

  • Individuals of Extraordinary Ability (First Preference)

  • Outstanding Professors and Researchers (First Preference)

  • Multinational Managers and Executives (First Preference)

  • Individuals qualifying for a National Interest Waiver (Second Preference)

  • Individuals in Schedule A Occupations (Second or Third Preference)

 

We work closely with employers to assess all possible permanent residence options and advise of the plausibility of each permanent residence strategy.  Through our highly personalized and attentive approach, we meticulously assess our clients' current immigration status and long-term interests.  This methodology allows us to prepare clear step-by-step guidance to help clients achieve their immigration goals.  

 

Labor Certification/PERM

While there are several channels through which an individual may secure United States permanent resident status, the most common employment-based strategy is the Labor Certification/PERM process.  Individuals requiring permanent residence sponsorship through the Labor Certification/PERM process will qualify under either the second (EB-2) or third (EB-3) preference category (see below).  The Labor Certification process is administered through the Program Electronic Review Management (PERM) system, which is why it is commonly referred to as the PERM process.  Where Labor Certification/PERM is required, permanent residence consists of three distinct stages completed over the course of several months or even years. 

 

Labor Certification/PERM is the first stage in the permanent residence process, and it consists of a good faith testing of the United States labor market for a minimally qualified, able and available United States worker.  Labor Certification/PERM requires that United States employers conduct a national recruitment campaign in compliance with specified forms of recruitment established under the Code of Federal Regulations.  Due to the scope of recruitment that the employer is obligated to undertake, the Labor Certification/PERM process is both expensive and time-consuming.     

 

Individuals of Extraordinary Ability (EB-1)

This first preference employment-based category is available to individuals of extraordinary ability in the sciences, arts, education, business or athletics.  An individual must demonstrate sustained national or international acclaim through the submission of extensive documentation of the individual’s achievements and recognition in the field of endeavor.  Individuals must seek to enter the United States to continue to work in their field of endeavor and demonstrate that their work will substantially benefit the United States.  This category is intended for the small percentage of individuals who have risen to the very top of their field of endeavor, and it is exempt from the Labor Certification/PERM process.  The extraordinary ability standard is demonstrated through satisfaction of at least three of the following defined criteria: 

 

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

  • Membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.

  • Published material in professional or other major trade publications or major media, relating to the individual’s work in the field.

  • Participation as a judge, individually or as a member of a panel, of the work of others in the same or an allied field.

  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

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

  • Display of the individual’s work at artistic exhibitions or showcases.

  • Performance in a leading or critical role for organizations or establishments with a distinguished reputation.

  • High salary or other significantly high remuneration for services, in relation to others in the field.

  • Commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.

 

Outstanding Professors & Researchers (EB-1)

The outstanding professors and researchers classification is a first preference category and does not require a Labor Certification/PERM application.  An individual must be recognized internationally as outstanding in a specific academic research or teaching field and the individual must possess at least three years of experience researching or teaching in the academic field.  This category requires an offer of permanent employment from (1) a tenured or tenure-track position at a university or institution of higher education to teach in the academic field; (2) a comparable position with a university or institution of higher education to conduct research in the field; or (3) a comparable position to conduct research with a private sector employer if the employer employs at least three full-time researchers and has achieved documented accomplishments in the academic field.  This first preference category requires than an individual satisfy at least two of the following defined criteria: 

 

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

  • Membership in associations that require outstanding achievement in the academic field.

  • Published material in professional publications written by others about the individual’s work in the academic field.

  • Participation as a judge, individually or as a member of a panel, of the work of others in the same or an allied field.

  • Original scientific or scholarly research contributions to the academic field.

  • Authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field.

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Multinational Managers & Executives (EB-1)

This first preference employment-based category is available to multinational managers and executives and does not require a Labor Certification/PERM application.  The multinational manager or executive category applies to individuals who were previously employed in a managerial or executive capacity with a foreign parent, subsidiary, affiliate or branch of the petitioning United States employer.  In order to qualify for the multinational manager or executive category, the individual must have been employed abroad for at least one year in a managerial or executive capacity within the three years preceding the initial entry to the United States, and must have an offer of permanent employment in the United States in a managerial or executive capacity.

 

National Interest Waiver (EB-2)

Under the National Interest Waiver category, United States Citizenship and Immigration Services may waive the standard Labor Certification/PERM process for an individual if it is determined to be in the national interest of the United States to do so.  This category is available to individuals who possess an advanced degree and are able to demonstrate that their work is in an area of substantial intrinsic merit, provides a benefit that is national in scope, and serves the national interest to a degree that exceeds similarly qualified United States workers.  An individual may self-petition under the national interest waiver category, meaning that it does not require sponsorship or an offer of permanent employment from a United States employer.  An approved national interest waiver petition will qualify an individual for the employment-based second preference category. 

 

Professionals Holding an Advanced Degree (EB-2)

The second preference category is available to individuals who are sponsored for positions requiring an advanced degree, or the foreign equivalent.  For purposes of the second preference category, an advanced degree is defined as any United States academic or professional degree, or the foreign equivalent, above that of a bachelor’s degree.  Furthermore, individuals possessing a bachelor’s degree, or the foreign equivalent, followed by five years of progressive post-bachelor’s experience in the specialty may also qualify under the second preference category.  It is the minimum requirements for the offered position – rather than the specific qualifications of the individual sponsored – that dictate whether or not a position will qualify under the second preference category.  An employer must complete the Labor Certification/PERM process before it will be able to file an immigrant visa petition for a professional holding an advanced degree.

 

Professionals (EB-3)

Positions requiring at least a bachelor’s degree, or the foreign equivalent, qualify under the third preference category.  An employer must complete the Labor Certification/PERM process before it will be able to file an immigrant visa petition for a professional worker.

 

Skilled Workers and Other (Unskilled) Workers (EB-3)

In order to qualify as a skilled worker, the position offered must require at least two years of experience or training and must not be of a temporary or seasonal nature.  The other (unskilled) worker designation applies to positions that do not require a minimum of two years of experience or training.  An employer must complete the Labor Certification/PERM process before it will be able to file an immigrant visa petition for a skilled worker and other worker, unless the position offered qualifies as a Schedule A occupation.

 

Schedule A Occupations (EB-2 or EB-3)

Schedule A (Group I): Schedule A occupations are exempt from the Labor Certification/PERM process because they have been determined by the United States Department of Labor to lack sufficient able, willing, qualified and available United States workers.  Physical Therapists and professional nurses qualify under Schedule A for the third preference employment-based category.  Schedule A occupations require an offer of employment from a United States employer.

 

Schedule A (Group II): This category is available to individuals of exceptional ability in the sciences or arts or performing arts who have been practicing the same science or art during the year prior to submitting an application, and who intend to practice the same in the United States.  The position offered in the United States must require exceptional ability, which is defined as a degree of expertise significantly above that ordinarily encountered.  The exceptional ability standard is demonstrated through satisfaction of at least two of seven defined criteria:  

 

  • Receipt of internationally recognized prizes or awards.

  • Membership in international associations that require outstanding achievement of their members.

  • Published materials in professional publications about the individual.

  • Participation on a panel or individually as a judge of the work of others.

  • Original scientific or scholarly articles of major significance in the field.

  • Authorship of published scientific or scholarly articles in the field in international journals or journals with an international circulation.

  • Display of the work at artistic exhibitions in more than one country.

 

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