Immigrant (Permanent) Visas
For the vast majority of professionals being sponsored for permanent resident status in the U.S., the green card process consists of three steps: labor certification, the immigrant visa petition, and an application for permanent residence. Labor certification, the first step, is a federally-required test of the U.S. labor market in the intended area and occupation of employment. For the employer to complete the labor certification process on behalf of a sponsored employee, it must demonstrate that no qualified, willing, able and available workers can fill the position on a permanent, full-time basis, and that the permanent placement of the sponsored foreign national employee in that position will not adversely affect the wages and working conditions of U.S. workers. The employer does so under the rules and regulations governing the Department of Labor's Program Electronic Review Management (PERM) application process.
Some persons can receive permanent resident status based upon employment without first obtaining labor certification from the Department of Labor. Those persons file an immigrant visa petition directly with USCIS providing evidence of their qualifications under one of the classifications described below including Extraordinary Ability, Outstanding Researchers, Multinational Managers/Executives, National Interest Waivers, Schedule A Cases, Physicians or Investors. The ability to forego labor certification often 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. This document reviews the basic requirements to obtain permanent resident status without labor certification and those special circumstances when a job offer is not required.
Most persons who obtain permanent resident status based upon employment must first obtain a certification from the United States Department of Labor (DOL) that their employer has tested the labor market and has been unable to find qualified, willing, able, and available U.S. workers. This process, which is known as labor certification or PERM, usually involves the placement of recruitment in various media over several months. Thereafter, the employer must document all applicants who applied and the lawful, objective, job-related reasons for each applicant's rejection.
Despite the DOL's initial intention to adjudicate PERM applications within a few weeks, applications now take in excess of eleven (11) months for approval; if the DOL requests additional information, which happens frequently, the application will take years to adjudicate. It is only upon approval of the PERM application that an individual's employer may file an immigrant visa petition with United States Citizenship and Immigration Services (USCIS).
Some foreign nationals can receive permanent resident status based upon employment without first obtaining labor certification from the DOL; some individuals also may not need a specific offer of employment. Those persons can immediately file an immigrant visa petition with USCIS. Provided the priority date for their green card preference category is current, they also may immediately pursue the last step of the green card process through USCIS (concurrently with the petition) or at a U.S. consulate abroad (after petition approval). Filing directly for an immigrant visa often saves substantial time and expense for the employer and the employee.
Immigrant Visa Options Not Requiring Labor Certification through the DOL
Preference | Category | Description |
1st | Persons of Extraordinary Ability in the Arts, Sciences, Business, or Athletics | These individuals have sustained national or international acclaim in the fields of endeavor, with clear recognition that they are at the top of their fields. These individuals do not need a specific offer of employment but must demonstrate the intent to continue to work in their field, and that doing so would prospectively benefit the U.S. |
Outstanding Professors or Researchers | These individuals are professors or researchers who have at least three years of experience and enjoy international recognition for their outstanding work. They must have either an offer of employment (tenure-track or permanent) from a university or public research organization; or, a private employer, so long as it employs at least three full-time researchers and has achieved documented accomplishments in an academic field. | |
Multinational Executives or Managers | These individuals are international executives and managers who were executives and managers with their companies abroad for at least one year during the past three years of their admission to the U.S. Their employers must intend these individuals to continue to perform as executives or managers with the U.S. operations of the company on a permanent basis. | |
2nd | Persons of Exceptional Ability or With an Advanced Degree - National Interest Waiver | These individuals have advanced degrees or have exceptional ability in the sciences, arts, or business. These individuals must present extensive evidence that their work will be in the "national interest" of the U.S. They require qualifying job offers from an employer. |
Schedule A/Group II Exemption for Persons of Exceptional Ability* (*Presently unavailable) | These individuals have been practicing their science or art for the last year, and their past and continued work in the U.S. must require exceptional ability. They require qualifying job offers from an employer. | |
3rd | Professional Nurses | These individuals are nurses who hold a full and unrestricted license or who have passed the CGFNS examination and who can show progress toward licensure. They require qualifying job offers from an employer. |
Physical Therapists | These individuals are physical therapists who are eligible for a state license as confirmed by a state licensing authority. They require qualifying job offers from an employer. | |
5th | Immigrant Investors | These individuals have invested a substantial amount of funds into either a new or existing enterprise, resulting in the creation of jobs for U.S. workers, while maintaining a substantial role in the enterprise. Individuals may opt to invest in specially designated regional centers, which operate in targeted employment areas under established private management and require a lower amount of investment. |
Whether or not a person qualifies for permanent resident status, either with or without a labor certification, cannot be ascertained until we have had an opportunity to review the foreign worker's credentials and potential employment options, and after a complete consultation, either in person or telephonically.