Service Category: Other

The DOL recognizes that there are shortages of US workers in certain occupations and that it would be inefficient to require employers to undertake the standard PERM recruitment process for certain occupations.  As a result, the DOL has a designated pre-certified list that establishes that workers in certain job classifications will not adversely affect US workers. This is called “Schedule A Occupations”. Importantly, Schedule A petitions must be filed by a US employer.

Schedule A Occupations is divided into two groups:

Schedule A, Group 1, for professional nurses and physical therapists.

1. Physical therapist – must possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
2. Professional Nurses – the individual (i) has a Commission on Graduates Foreign Nursing Schools (CGFNS) Certificate, (ii) he/she has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) the he/she holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

These types of cases are very specific because the licensing requirements vary state by state.  Definitely consult with an attorney if you are a physical therapist or professional nurse who is planning on filing a petition pursuant to Schedule A Occupations.

Schedule A, Group II, for persons of exceptional ability in the sciences or arts and university teachers:

1. Scientists or Artists (except performing arts) – individuals of exceptional ability in the sciences or arts (except the performing arts) including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term “science or art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An individual, however, need not have studied at a college or university in order to qualify; and
2. Performing Artists – individuals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

This is not to confuse with the EB-1A Alien of Extraordinary Ability, immigrant category because there are major differences between the two. For example, EB-1A does not require employer sponsorship and a permanent job offer. In contrast, Schedule A requires permanent employment from a U.S. employer.

Obviously, not many individuals can meet these requirements. However, an experienced immigration attorney can provide guidance on what type of evidence is required to meet these qualifications.

Normally if you qualify for the second employment based (EB-2) category (individuals holding advanced degrees and persons with exceptional ability in the sciences, arts or business) a job offer and a labor certification is generally required. However, under the NIW employment category, this requirement can be waived if the petitioner demonstrates that granting the EB-2 petition would be in the national interest of the United States.   To be eligible for a NIW, you must provide evidence of an advanced degree or exceptional ability.

In order to demonstrate exceptional ability, you must meet at least three of the criteria below:

• 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.

In addition, in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification, you must meet the following NIW criteria below:

• The proposed endeavor has both substantial merit and national importance.
• You are well positioned to advance the proposed endeavor.
• It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

NIW cases are very difficult and are subject to high scrutiny. To prepare this type of case, you need an experienced attorney who is well versed in presenting NIW petitions.

The Employment-Based Green Card has three separate and distinct steps. The first step is with the Department of Labor (DOL), while steps two and three are filed with USCIS. Processing times vary, but generally, the first step takes the longest amount of time, with waiting periods for government approval taking up to more than six months. Here’s a quick breakdown of that process.

Step One: PERM

Program Electronic Review Management (PERM) is the electronic system for an employer to file an application for alien labor certification on behalf of a current or prospective employee directly with the U.S. Department of Labor (DOL). This the first step of the Green Card process for foreign nationals seeking permanent residence through their employment.

The process is long and detailed, with several steps required to start up the case, including submitting filings with the Department of Labor, local state work authorities, and an online registration.

The first major process is testing the U.S. labor market in the area of intended employment. A couple of steps that you will encounter include:

1. The employer must obtain a prevailing wage determination from the Department of Labor. Employers will be required to pay one of the four-level wages found in the DOL system according to experience and specialty levels required by the occupation.

2. The employer must post a notice of job opportunity containing vital information related to the occupation for at least 10 consecutive business days.

3. The employer must place a job order with the State Workforce Agency (SWA) for a specific designated time, normally 30 days.

4. The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must contain vital information specific to the occupation at hand.

5. Three additional recruitment steps for professional jobs are required which can consist of job search websites, trade or professional organizations, and job fairs to name a few.

As you can see, this process has many requirements and each requirement has a preparation phase, a filing phase, and response. This makes it very difficult to judge exactly how long it will take to get a case approved.

The Department of Labor also conducts audits of certain PERM applications according to internal criteria designed to identify questionable applications.  While some audits are random, if you require a foreign language interpreter, the case will normally be automatically audited.

Second Step: Immigrant Visa Petition Filing USCIS Form I-140

Once the Department of Labor certifies the PERM application, the employer must then file an immigrant visa petition (Form I-140) with the USCIS, along with evidence that the current or prospective employee possesses the required experience, education, or the combination thereof for the offered position.  In addition, the employer must demonstrate that they have the ability to pay the proffered wage.

Typically, this petition will require detailed documents to support the filing.  This is the point at which an employer will be called upon to present tax records and W-2 forms to show the wage and earnings.

● PLEASE NOTE THAT STEPS 1 AND 2 DO NOT GIVE YOU A WORK PERMIT

Third Step: The Green Card USCIS Form I-485 or Consular process

This final step is the actual Green Card Application or Consular process.  Which means that you will be either filing an Adjustment of Status application within the United States or filing an Immigrant Visa application at a U.S. consulate abroad. Typically, you will need to consult your visa bulletin to know when you are eligible to file this step.

Green Card Portability

According to the regulations and the policy set forth in the AC11 memo, an employee may keep his or her Green Card application viable if he/she moves to a position similar to that set forth in the alien labor certification application (PERM), but only 180 days after Step 3 has been filed, provided that form I-140 is approved ( Step 2).  Only an experienced attorney’s office can handle this type of porting application, so please contact our office to discuss the intricacies associated with Green Card portability. We are experienced at handling these situations and can help smooth out any bumps along the way.

The EB-3 visa classification is for skilled workers and professionals, as well as some unskilled workers. With all petitions for an EB-3 visa, there must be a permanent full-time job for the applicant and a Labor Certification. The Labor Certification is needed to show that there were no available workers in the United States that would qualify for the job.

Skilled Worker Qualifications

To qualify as a skilled worker, the person must be capable of performing skilled labor. This will require two years of training or job experience. The work cannot be done temporarily or seasonally. These jobs include but are not limited to:

● Chefs

● Stonemasons

● Construction Supervisors

● Technical Workers

● Designers

Professional Qualifications

To qualify as a professional, the applicant needs to have a U.S. baccalaureate or a foreign equivalent. They also need to show that this degree is considered the normal entry requirement for the occupation in which they will be working. Jobs that meet the requirements of a professional qualification include but are not limited to:

● Engineers

● Teachers

● Lawyers

● Accountants

● IT Specialists

● Medical Professionals

● Psychologists

● Social Workers

Unskilled Worker Qualifications

When the petition is filed, the person must be capable of performing unskilled labor requiring two or fewer years of training or experience. The work cannot be temporary or seasonal. Jobs that commonly qualify as unskilled labor include but are not limited to:

● Groundskeeper

● Janitor

● Agricultural Workers

● Domestic Workers

● Nurse’s Aides

Family Members of EB-3 Visa Holders

A spouse and children who are under 18 are derivative beneficiaries of the EB-3 visa holder. When applying for a green card, the spouse will be eligible to file an Employment Authorization Document to work in the US.

 

 

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the ablest and most accomplished in their respective fields within the arts, sciences, education, business, or sports. It is meant for people who have some type of extraordinary ability, as well as those who are managers or executives of multinational companies, professors, or researchers.

Understanding the EB-1 Visa Program: A High-Level Overview

There are three (3) types of EB-1 petitions:

1. Alien of Extraordinary Ability (EB-1A)
2. Outstanding Researcher/Outstanding Professor (EB-1B)
3. Managers and Executive Transferees (EB-1C)

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement. Another advantage is that visa numbers are almost always current for the EB-1 category. This means that an alien will not have to wait for visa numbers to become available before adjusting status and receiving a green card.

Note that to obtain an EB-1, the applicant only needs to show that they are a Person of Extraordinary Ability. There does not need to be an active offer of employment to immigrate to the United States for those who qualify for this status. The processing time for these applications tends to be short since the petitioners can directly file the I-140 petitions without PERM filing.

Obtaining a Labor Certification is a time-consuming and expensive process that seeks to determine whether sufficient able, willing and qualified U.S. workers are available to fill the position sought by the alien. In addition to the time and expense of the Labor Certification process, an alien risks being denied a Labor Certification if any U.S. workers with the minimum technical qualifications for the employment are found (even if the alien is actually more suitable for the position based on factors not considered in the Labor Certification process). However, in EB-1B and EB-1C petitions, a permanent job offer is required. In other words, a U.S. employer must be the petitioner for EB-1B or EB-1C cases.

Who is eligible for the EB-1 visa program?

• Certain multinational executives and managers
• Outstanding professors and researchers
• Those with extraordinary ability in the sciences, arts, education, business, or athletics

Those of Extraordinary Ability and the EB-1A Visa Program

There are two ways to satisfy the requirements for an EB-1 immigrant visa for extraordinary ability. The first is receiving a major, internationally-recognized award. The applicant needs to be able to demonstrate that they have an extraordinary ability through continued acclaim in their nation in athletics, business, education, the arts, or the sciences. There needs to be a substantial amount of documentation that shows the applicant is recognized in their field.

This classification is difficult to receive, as there are so few people that fall into this category. Fortunately for those who haven’t won any international prizes yet, the second set of standards is diverse and a bit easier to show you qualify.

EB-1 Visa Program Qualifications for a Person of Extraordinary Ability

If you have fulfilled at least three of the following ten Extraordinary Ability green card standards, you may also qualify:

1. Receipt of a lesser nationally or internationally recognized prize for achievement in your field. This could include a medical fellowship, a Fulbright award, or a Caldecott award.

1. Membership in associations in your field that requires “outstanding achievement” of their members. This standard is relatively vague. Associations that are open to all members of a given profession can be considered, but associations that limit membership to only the most accomplished members of the profession are certainly more valuable.

1. Material published about you in major trade publications or other major media. The material must concern your work in the field. Publications could range from journals specific to your field, like The Journal of Otolaryngology, to major newspapers, like The New York Times. You are not limited to print; a story about you on “60 Minutes” might also fulfill this requirement.

1. Serving as a judge of others in your field either individually or on a panel. Sitting on the Nobel Prize Committee would fulfill the requirement, as would participating in the peer-review process of a scientific article or acting as a member of a thesis review committee.

1. Original, scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field. This standard is wide open. USCIS will base its judgment of your contribution on the letters of support that others in the field submit. Letters from recognized authorities in your field who consider your contributions original and significant will satisfy this requirement.

1. Authorship of scholarly articles in your field. This refers to articles that you wrote concerning your work rather than material written about you by others, as is the case with standard 3 above. Again, the publications can range from major trade journals to mass media. Although the regulations refer specifically to “articles,” other forms of publication such as visual media should fulfill this requirement.

1. Display of your work in exhibitions or showcases. The regulations do not mention how prestigious the exhibition must be.

1. Performing a critical or leading role for organizations that have a distinguished reputation. This could be acting as a curator for the Metropolitan Museum of Art or serving as an essential researcher for an important laboratory.

1. Commanding a high salary in your field. The regulation requires that your salary or remuneration be high in relation to others in the field, so a teacher need not make as much as a professional football player.

1. Commercial success in the performing arts. This can be demonstrated by box office receipts from your films or plays, sales of your record, or selling your video documentary to a network for a notable sum.

Satisfying three out of the ten criteria does not guarantee that USCIS will grant you EB-1 classification as an alien of extraordinary ability. USCIS looks for quality as well as quantity. As in so many other aspects of immigration law, comprehensive documentation of your qualifications is very important.

In addition to the above criteria, the alien must prove that he/she will continue to pursue work in the area of extraordinary ability in the U.S. and prove that his/her work is of substantial and prospective benefit to U.S. national interest. Procedurally, the EB-1A is an I-140 Immigration Petition, Petition for Alien Worker application. The alien may petition for him/herself by filing Form I-140 with supporting documentation that demonstrates that the alien meets the fundamental EB-1A criteria. The petition is one of the fastest ways to obtain a Green Card. An EB-1A candidate may petition for his/her own permanent residency without the need for an employer sponsor, as is generally required in employment-based petitions.

Overall this process requires a good deal of time and planning. To prepare this type of case, we need to see your entire background and review your accomplishments. Oftentimes we have clients who work with us while they complete some of their extraordinary accomplishments.  Keep in mind that we want to guide you through this process to get a win.

Outstanding Professors and Researchers Can Apply for the EB-1B Visa

To qualify for an EB-1 visa, outstanding professors and researchers must be recognized internationally for their outstanding academic achievements in a particular field. Also, an outstanding professor or researcher applying for the EB-1 visa program must have at least three years of experience teaching or researching in that academic area and enter the US in a tenure or tenure track teaching or comparable research position at a university or other institution of higher education. If the employer is a private company rather than a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full-time in research activities and have achieved documented accomplishments in an academic field.

EB-1 Visa Program Qualifications for Researchers or Outstanding Professors

The person must also have a job offer from an employer in the United States and meet at least two of the following criteria:

1. Receipt of major prizes or awards for outstanding achievement

1. Membership in associations that require their members to demonstrate outstanding achievements

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

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

1. Original scientific or scholarly research contributions in the field

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

No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS. More often than not, this process is handled by University counsel or an on-campus office.

Certain Multinational Executives and Managers Qualify for the EB-1C Visa

Some executives and managers of foreign companies who are transferred to the U.S. may qualify for the EB-1 visa program. A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the US in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S. to continue service (in a managerial or executive capacity) to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

EB-1 Visa Program Requirements for Managers or Executives

To qualify for an EB-1 visa as a manager or executive, the applicant needs to meet all of the following requirements:

1. The party that petitions needs to be a US employer.

1. The employer needs to have been doing business for at least a year as the same corporation, an affiliate, or a subsidiary or other legal entity that employed the applicant abroad.

1. The applicant needs to be entering the US to continue working for that organization.

1. The applicant needs to have been employed by a foreign company outside of the US for at least one of the three years before they applied for the EB-1 visa.

1. The applicant’s employment outside of the United States needs to have been as an executive or manager with the same employer or a subsidiary or affiliate of the employer.

What Constitutes “Managerial Capacity” Under the EB-1 Visa Program?

Managerial capacity as it relates to the EB-1 visa program has been defined to mean an assignment with an organization in which the employee does all of the following:

1. Manages the organization, or a department, subdivision, function, or component of the organization.

1. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization.

1. If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, function at a senior level with respect to the function managed.

1. Exercises discretion over day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in the managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professionals.

USCIS frequently focuses on the number and level of subordinate employees when evaluating if a position is managerial. This can be demonstrated through a corporate chart. If there are few or no subordinates, then petitions may be denied, even if the prospective immigrant is the highest-level employee and responsible for an essential function. Further, the subordinates must themselves be managers, supervisors, or professionals.

Who Is a “Professional” Under the EB-1 Visa Program?

The word “professional” means a worker holding a university degree. USCIS considers professionals to be individuals with at least a baccalaureate degree who are performing jobs that require a baccalaureate level of education. Non-employee subordinates are also discounted by the USCIS so that the direction of independent contractors or commission-based staff carries little or no weight. First-line supervisors are not considered acting in a managerial capacity unless the employees who are supervised are themselves considered professional.

What Is “Executive Capacity” Under the EB-1 Visa Program? 

Executive Capacity means an assignment in an organization in which the employee primarily performs all of the following duties:

1. Directs the management of the organization or a major component or function of the organization

1. Establishes goals and policies of the organization, component, or function

1. Exercises wide latitude in discretionary decision-making

1. Receives only general supervision from higher-level executives, the board of directors, or stockholders of the organization.

The overall size of the organization is a factor in determining executive capacity. The larger the organization the more reasonable it will be to have a strong executive position. For example, a large international organization with a small U.S. office may only be able to show one U.S. executive for EB-1C. More often you will need to show independent management of a division or branch of a company to qualify under the law.

Each case is different and presents a variety of factors to consider and present for approval.  We work closely with our L1A’s to develop a strong EB1 case from the outset of the L1A visa.