Employment Based Green Cards

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Employment Based Green Cards

Obtaining a green card is the primary goal of our clients who plan to permanently reside in the United States. If this is your goal, please contact the Law Office of Mine Gur to arrange a consultation and to learn how we can help you obtain permanent residence through the categories listed below.

 

EMPLOYMENT BASED FIRST CATEGORIES

 

Extraordinary Ability (EB1)

“Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”

“No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.”

Aliens with extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.

You can do this by providing evidence of a one-time achievement award (such as an Oscar, Pulitzer Prize, Olympic Medal, etc.), or by meeting three (3) of the following criteria.

Criteria:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Evidence of your membership in associations in the field that demand outstanding achievement of their members;
  • Evidence of published material about you in professional or major trade publications or other major media;
  • Evidence that you have been asked to judge the work of others, either individually or on a panel;
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;
  • Evidence that your work has been displayed at artistic exhibitions or showcases;
  • Evidence of your performance of a leading or critical role in distinguished organizations;
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field; and
  • Evidence of your commercial successes in the performing arts.

 

The single most important factor in obtaining approval is advocacy. If the facts are well presented and persuasively argued, a petition that meets the USCIS criteria should be approved readily.

 

Outstanding Researcher or Professor (EB1)

 

Main requirements for approval in this category:

  • National/International recognition as being outstanding in a specific academic field
  • At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his work history with letters from current and/or former employers describing work duties and years of employment; and
  • A job offer for a permanent research position or a tenured or tenure-track teaching position: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.

Unlike the EB1 – Extraordinary Ability category, this category requires sponsorship by an employer (and thus is a bit easier to obtain approval than the Extraordinary Ability category).

You can do this by providing evidence to support at least 2 of the following criteria; and the person must have a job offer from a US employer.

Criteria that demonstrate that a person is an Outstanding Professor or Researcher:

  • Evidence of receipt of major prizes or awards for outstanding achievement;
  • Evidence of membership in associations that require members to demonstrate outstanding achievement;
  • Evidence of published material in professional publications written by others about the alien’s work in the academic field;
  • Evidence of participation (either on a panel or individually) as a judge of the work of others in the same or allied academic field;
  • Evidence of original scientific or scholarly research contributions in the field; and
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

 

Managers and Executives (EB-1)

 

Some executives or managers of multinational companies who are transferred to the United States may qualify for this classification. These executives and high-level managers must be responsible for directing the company or an important department or component of the company.

 

To qualify for EB-1 preference as an Executive or Manager, you must meet the following            criteria:

  • The petitioning party must be a US employer;
  • Your employer must have been doing business for at least 1 year as an affiliate, subsidiary or as the same corporation or other legal entity that employed you abroad;
  • You must have been employed by the foreign company/entity outside the United States for at least 1 of the 3 years preceding the time of your application for classification and admission to the US;
  • You must be seeking to enter the United States to continue service for that firm or organization; and
  • Your employment outside the United States must have been in a managerial or executive capacity and with the same employer, affiliate, or subsidiary of the employer.

 

 

EMPLOYMENT BASED SECOND CATEGORIES

 

National Interest Waiver/NIW (EB2)

 

In order to qualify for the Green Card in the National Interest Waiver category, it must be shown that the individual possesses an exceptional level of skill in his/her field, and that the individual’s admission to the U.S. would be in the U.S. National interest.

Unlike the extraordinary ability category, it is not necessary that the individual prove that he/she is one of the very best in the field; the individual need only prove that he/she possesses a level of skill significantly above that of his/her peers. However, the individual applying for the National Interest waiver must show that their presence in the U.S. would benefit the U.S. National interest to a greater degree than others in the field with similar qualifications. Overall, the requirements for application in the ‘national interest’ category are less stringent than the requirements in the ‘extraordinary’ ability category.

There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. The USCIS considers each case on an individual basis.

By making a strong argument and presenting documentation establishing that your permanent presence in the U.S. will:

  • Improve the health of Americans or advance medical/scientific research in the U.S.; or
  • improve the U.S. economy; or
  • improve wages and working conditions of U.S. Workers; or
  • improve educational and training programs for U.S. children and under qualified workers; or
  • provide more affordable housing for young, aged, or poor U.S. Residents; or
  • improve the U.S. Environment and lead to more productive use of the national resources.

NIW petitions are very common among Ph.D. students, researchers, post doctoral research fellows, and other advanced degree professionals. You can apply for NIW petition even if you are on F1 status, as NIW does not require a specific offer of employment.

 

 

Physicians in Under Deserved  Area (EB-2)

 

The first subcategory is concerned with highly talented physicians and scientists who are seeking to obtain their U.S. Green Card based on the claim that his/her immigration is in the U.S. National interest. In this subcategory, the applicant needs to submit substantial documentation to show that his/her permanent presence in the U.S. would substantially benefit this country in the field of medicine, science, etc. The physician/scientist requests a waiver of the job offer requirement based on national interest (hence the name ‘national interest waiver’). No U.S. job offer is necessary.

The specific eligibility requirements are:

  • You must agree to work full-time in a clinical practice for a period of 5 years;
  • You must work in primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialist physician;
  • You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA); and
  • You must obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation).

Once the physician meets these requirements, he/she could apply for permanent residency in the U.S. Please note, however, that final approval of the U.S. Green Card will be delayed until the physician meets the required period of service.

A common question is whether this five-year practice requirement applies to physicians previously in J-1 status who have received a waiver of the two-year home residency requirement that he/she work for three-years specifically in H-1B status. The answer is yes.

Once the five-year practice requirement has been met, the physician then needs to provide proof of fulfillment of the service obligation within 120 days of the fifth year of service before the USCIS will grant final approval of the application for U.S. Green Card.

 

Exceptional Ability in Science, Arts, and Business (physicians/scientists) (EB-2)

 

Aliens who qualify under this classification are the ones “who because of their exceptional ability in the science, arts or business will substantially benefit the national economy, cultural, educational interest or welfare of the United States.”

To qualify as an Individual of Exceptional Ability, you must meet at least three 3 of the following criteria:

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

Permanent, full time job offer is required, unless qualified under National Interest Waiver (NIW).

 

An alien who meets three of these requirements or has an advanced degree and a job offer from a U.S. employer can process a labor certification under the EB-2 category. However, one who qualifies for the National Interest Waiver is deemed to be of such value to the United States that he/she is neither required to process a labor certification nor have a job offer.

 

Member of Profession Holding Advanced Degree (EB-2)

 

The petition can be filed in this category if the job requires an advanced degree (a degree beyond bachelor’s, such as master degree or Ph.D.) and the alien such as a degree or the equivalent (bachelor’s degree plus five years of progressive experience in the profession). The degree may be from the U.S., or an equivalent degree from a foreign country. If applying by BS+5 years of progressive experience in the specialty after the bachelor degree are required.

Applications for a green card for a Professional with an advanced degree should be supported by:

  • Labor certification; and
  • An official academic record showing that the candidate has a U.S. advanced degree or an equivalent foreign degree; or
  • An official academic record showing that the candidate has a U.S. baccalaureate degree or an equivalent foreign degree with letters confirming five years of post-qualification experience.

EB-3 Skilled, Professional and Other Workers

 

If you have any questions regarding the employment based green card process, please contact [email protected] or call 917-558-5047.

 

EMPLOYMENT BASED THIRD CATEGORIES

 

Skilled Workers (EB-3)

 

Positions that are not seasonal or temporary and require at least two years of job experience, and undergraduate degree, vocational training apprenticeship in a trade. The training requirement may be met through relevant post-secondary education.

 

Professional Workers (EB-3)

 

Professional must hold a U.S. bachelor’s degree or foreign equivalent degree that is normally required for the profession (such as engineering, computer science, etc.) or work with a bachelor degree in a profession. This category is for aliens who do not qualify for the EB-2 category. The job must require a bachelor’s degree.

 

Other (unskilled) Workers (EB-3)

 

Other workers with less than two years of higher education, training, or experience such as an unskilled worker who can perform labor for which qualified workers are not available in the United States. Job must require that specific training or experience.

 

LABOR CERTIFICATION

There are several ways of applying for US permanent residence (or “green card” status). The most common employment-based method is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers.

PERM (Program Electronic Review Management) is the standard process for obtaining Green Cards through employer sponsorship. The PERM process is facilitated through the U.S. Department of Labor. Applications for PERM are submitted electronically once the employer has taken certain designated recruitment steps and followed the procedures necessary to establish that an American worker is not readily available for a particular job.

There are certain BASIC requirements for all PERM applications. They are as follows:

  • FULL-TIME EMPLOYEE. The employer must hire the foreign worker as a full-time employee, not part-time.
  • PERMANENT POSITION. The employer must be offering a permanent position. Temporary or seasonal positions do not qualify for labor certification. (The positions of Medical Resident or Medical Fellow may NOT be considered PERMANENT positions, as they are limited in duration – be CAREFUL about applying for PERM certification on the basis of a residency/fellowship position.)
  • STANDARD/REASONABLE JOB REQUIREMENTS. The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed.
  • WAGE OFFER MUST BE AT LEAST THE PREVAILING WAGE FOR THE POSITION. The employer must pay at least the “prevailing” wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The prevailing wage is obtained from iCERT System Labor Certification Registry.
  • THE ALIEN MUST MEET THE QUALIFICATIONS OF THE POSITION PRIOR TO THE TIME OF APPLICATION. For example, if the offered position is that of INTERNAL MEDICINE PHYSICIAN, and the alien is in the midst of his/her residency, he/she does NOT yet qualify for PERM application. Instead, he/she must wait until completion of residency to file.

 

PERM applications are filed by employers on behalf of their physician/scientist employees. The PERM process involves only the US Dept. of Labor. Once certified by the US Dept. of Labor, an appropriate immigrant visa petition (EB2) may be submitted to the US Immigration Service.

 

US Dept. of Labor regulations require that the employer cover any fees associated with proceeding with a PERM Green Card applications. Therefore, the individual physician or scientists is not legally able to pay for the costs of this process.