(updated 12/6/2012)

By Cyrus D. Mehta

I.       INTRODUCTION

          Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. Employment-based (EB) immigration is limited by the Immigration and Nationality Act (INA) to 140,000 persons per year.

          INA § 203(b) sets forth five EB preferences.  They use up the 140,000 visas annually in the following proportions:

          EB-1 provides 40,000 numbers for persons of extraordinary   ability, outstanding researchers and professors, and multinational     managers and executives;

          EB-2 provides 40,000 numbers for persons with advanced degrees or with exceptional ability plus any unused EB-1 numbers;   

          EB-3 provides 40,000 numbers for professionals having baccalaureate degrees, skilled and unskilled workers plus any unused EB-1 and EB-2 numbers;

           EB-4 provides 10,000 numbers to special immigrants, which includes religious workers; and  

          EB-5   provides 10,000 numbers for investors who create 10 jobs    and invest up to $1 million (although the amount may be higher or   lower depending on whether it is a rural area or a low or high    unemployment area).

          In addition, no country can use more than 7% of the worldwide numbers in any of the above categories.  Therefore, nationals of a particular country are limited to no more than 9,800 EB numbers per year.  Due to greater demand for EB visas from countries with large populations like China and India, the EB-2 and EB-3 backlogs often tend to be far greater for persons born in these countries. Although H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote, it has not yet been taken up by the Senate. This bill eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 or a similar version of this bill does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

          This overview focuses on the first three preferences – EB-1, EB-2, and EB-3. The process is generally three fold: a) The employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL) (although, as discussed below, labor certification is not required in some cases); ¹ b) the employer applies for immigrant visa classification by filing Form I-140 under the EB-1, EB-2 or EB-3 ² and c) the foreign national applies for lawful permanent residency or the “green card” through adjustment of status ³ in the United States or consular processing overseas.

II.       LABOR CERTIFICATION

          In most cases under the EB-2 and in all cases under the EB-3, the employer must obtain “labor certification” from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. ⁴ To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer should have also offered the position at the normal or prevailing wage.

          The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements  must be normal to the occupation and not more than the worker possessed when hired for the position.  Nor can the requirements be tailored to the foreign worker’s specific skills and qualifications. A test of the labor market is done through newspaper advertisements and other forms of recruitment, along with an internal posting and a job order on a DOL job site. Any responses to the recruitment must be evaluated carefully and in good faith. The employer can reject applicants only for lawful, job-related reasons.

          A labor certification is only a first step in the permanent resident process to obtain the “green card.” It continues to be a lengthy process and does not give authorization for a foreign national to remain or work in the United States unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa.

a.      Describe the Labor Certification Programs?

          Effective March 28, 2005, the DOL streamlined the labor certification process under a system called Program Electronic Review Management (PERM). ⁵ An employer is required to place two Sunday advertisements for the position. For professional positions, the employer has to conduct three further recruitment steps. The employer also needs to place a 30-day job order through the State Workforce Agency (SWA), as well as obtain a prevailing wage determination from the SWA. Furthermore, the employer has to internally post a job notice for 10 days. After the employer has completed the mandated recruitment steps, it may electronically file a PERM application attesting that it has undertaken the necessary recruitment under PERM as well as attesting to various other requirements within 180 days from the earliest recruitment step. If the application is not audited, it generally gets approved within 3 months. The DOL, however, may select an application for an audit or for supervised recruitment and it would exercise this scrutiny for both problematic and random applications. Many applications have been selected for an audit resulting in delays of over six months. Although PERM was designed to streamline and expedite labor certification, the program has once again been mired by delays and backlogs especially if a case has been selected for audit. In some cases, the DOL will conduct a supervised recruitment, and these are becoming increasingly common in recent months. Furthermore, in an era of increased unemployment, previously qualified laid off workers by the employer must be considered if the application is being filed within 6 months of the lay off of a qualified worker in the same or related occupation.

b.       Are There Any Ways To Expedite The Labor Certification   Process?

          Physical therapists and professional nurses have been exempted from most of the labor certification requirements. ⁶ Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a “Special Handling.” ⁷ Also, certain persons of exceptional ability are exempted from labor certification. ⁸

c.       Can Labor Certification Be Avoided Altogether?

          Labor Certification is only required for individuals applying under the EB-2 and EB-3.

          Individuals who qualify under the EB-1 do not require a labor certification. The three categories under the first preference are: (I) Persons of Extraordinary Ability, (ii) Outstanding Professors and Researchers; and (iii) Multinational Executives or Managers. Applications requesting a waiver of the job offer requirement in the national interest under the employment-based second preference also do not require labor certification.

          (i) Persons of Extraordinary Ability         

          An individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. ⁹ Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required. The legislative history indicates that this category is intended to be “for the small percentage of individuals who have risen to the very top of their field of endeavor.”

          Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field.

7. Artistic exhibitions or showcases.

8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts. ¹⁰

          An applicant may also submit comparable evidence if the above standards do not readily apply. Comparable evidence may include expert opinion letters attesting to the applicant’s abilities.

          A recent decision has clarified that the USCIS cannot require additional requirements beyond those set forth in the ten criteria. Thus, in Kazarian v. USCIS, 596 F.3d 1115, the 9th Circuit held,  “Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5.” Id. at 1121. See also Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)(criticizing the government’s circular argument requiring that “plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability”); Gülen v. Chertoff, Civil Action No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008), at *4 (“Because Gülen has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3), the AAO’s determination that he has not demonstrated extraordinary ability is contrary to applicable law and must be reversed”).  However, despite meeting the regulatory criteria, the USCIS still insists on a “final merits determination” where it can judge the quality of the evidence even though the petitioner has met 3 out of 10 of the regulatory criteria. ¹¹

          (ii) Outstanding Professors and Researchers

          An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field. ¹²

          This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field. An offer of employment is required from the sponsoring employer in the form of a letter. ¹³

          Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:

1. Receipt of major prizes or awards for outstanding achievements.

2. Membership in an association which requires outstanding achievement.

3. Published material in professional publications written by others about the applicant’s work.

4. Evidence of the person’s participation as a judge of the work of others.

5. Evidence of original scientific research.

6. Authorship of scholarly books or articles in the field. ¹⁴

          USICS will also apply the “final merits determination” of the evidence submitted in satisfaction of 2 out of the 6 regulatory criteria.

          (iii) Multinationals Executives and Managers

          An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation. ¹⁵ The individual must further establish that he or she worked in a managerial or executive capacity for at least one year in the past three years immediately prior to his or her entry into the U.S. in the parent, subsidiary, branch or affiliate of the U.S. entity.

          (iv) National Interest Waivers

          The labor certification procedure may also be avoided altogether even under the second preference if the foreign national can establish that the “job offer” requirement should be waived in the national interest. ¹⁶The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.

          In a precedent decision of the Administrative Appeals Office (In Re New York State Department of Transportation, 22 I&N Dec.215, a three-prong test was established:

1. The person must seek employment in an area of substantial intrinsic merit;

2. The person must demonstrate that the proposed benefit will be national in scope; and

3. The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.

As part of a recent policy to encourage foreign entrepreneurs to the US who may create jobs for US workers, the USCIS issued Question and Answers on how an entrepreneur may qualify for the National Interest Waiver. ¹⁷ With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed "in an area of substantial intrinsic merit" and that the "proposed benefit will be national in scope." Interesting, until this new policy, it was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern has now been put to rest in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

It is the third that is extremely opaque and difficult to overcome. The petitioner must demonstrate that "the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien." The AAO in New York State Department of Transportation went on to further illuminate this criterion as follows: "Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

Overcoming the third prong is difficult, and allowed the USCIS to shoot down the best of arguments made by a national interest waiver claimant. Indeed, the USCIS could always resort to this subjective criterion to thwart even the most meritorious of claims, which is that the claimant does not overcome the inherent interest of the government in making the job available to US workers.

The EB-2 Q&A refreshingly provides the following golden nugget to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

III.     IMMIGRANT VISA PETITION

          The EB immigrant visa petition (Form I-140) is filed with the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security along with the approved labor certification.  The I-140 petition must be filed within 180 days of the approval of the labor certification, otherwise the labor certification will no longer be valid. ¹⁸   If the labor certification is not required, the I-140 petition becomes the initial filing. The priority date determines the availability of an immigrant visa. ¹⁹ For EB petitions, the priority date is either the date the labor certification is filed or the EB petition, where no labor certification is required.  The I-140 petition is filed to classify a foreign national under EB-1, EB-2 and EB-3.

          Many EB categories are backlogged. This means that the cut-off date for that EB category is not current, and one has to wait for the official cut-off date to coincide with the individual’s priority date before being able to file either the final adjustment of status application, if in the US, or the immigrant visa application, if overseas (see below).  If there is a backlog, it usually takes many more years to immigrate under the particular preference category.  Note that India and China are more backlogged than other countries in the second and third EB preferences. The general rule is that a person is charged to his/her country of birth, and not the country of citizenship, although there are exceptions under which an individual can cross-charge to another country. ²⁰ The main exception is the ability for one to cross-charge to the spouse’s country of birth. ²¹
         
IV.     APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING

          a. Adjustment of Status

          If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the USCIS in the U.S. Under a 2002 rule, the adjustment of status application may be filed concurrently with the Form I-140, discussed in the previous section. ²²

          As noted, the individual’s priority date should be current at the time of filing this application. Thus, if the foreign worker is in an EB preference that is backlogged, he or she can only file the I-485 application upon the priority date becoming current. The I-485 application can remain pending for several months before the USCIS issues lawful permanent residence to the foreign national. An adjustment applicant may apply for a temporary work permit during the pendency of the application. ²³ If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” ²⁴ However, “advance parole” is not required for people on H-1B or L status with the corresponding visas stamped on their passports. Upon approval of the application for adjustment of status, the individual is granted the “green card.” ²⁵ But if one who is maintaining H-1B or L status and reenters on an advance parole, this person can still apply for an extension of that H or L status, and may continue his/her H-1B or L employment after entering on advance parole. ²⁶

          b. Who Are Eligible For Adjustment Of Status?

          Adjustment of status is only available to individuals who have always maintained lawful status in the United States. ²⁷ However, those whose labor certifications or immigrant visa petitions were filed prior to April 30, 2001, could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their non-immigrant visas, and pay a penalty fee of $1000. ²⁸ Also, certain EB visa applicants could adjust status if they had not been out of status for more than an aggregate of 180 days since their last admission, even if the labor certification was filed after April 30, 2001. ²⁹

          c. Portability

          An adjustment of status applicant based on an EB first, second or third preference petition that is pending for more than 180 days “shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in a same or similar occupational classification as the job for which the petition was filed.” ³⁰

          d. Consular Processing

          Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must also return to their home country for consular processing. Many opt for consular processing as adjustment of status is more time consuming. On the other hand, adjustment allows for benefits such as portability and employment authorization, even for the accompanying family members. Individuals who have been unlawfully present by more than 180 days would be barred from reentering the United States for three years. ³¹ Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for ten years. ³² There are very limited exemptions for overcoming these bars, and those who are unable may apply for a waiver by demonstrating extreme hardship to a spouse or parent, who is a US citizen or permanent resident. ³³

          e. H-1B Extensions Beyond 6 Years

          Individuals who cannot process their green cards timely should ensure that they can remain in H-1B status even beyond the maximum allotted time of six years. §106(a) of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th-year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th-year.

          §104(c) of AC21 also provides a one-time protection for an H-1B visa holder by allowing him or her to extend the 6th-year period for three years at a time if he or she is the beneficiary of a first, second or third preference employment-based approved petition, but due to backlogs in the employment preferences, is unable to file for adjustment of status.  Such H-1B extensions will be granted in three year increments.