An individual may qualify for permanent residency in the United States as a priority worker. For academicians and researchers, a priority worker is characterized as one who has extraordinary ability OR those who are outstanding professors and researchers.
1.) ALIENS OF EXTRAORDINARY ABILITY
Under U.S. Immigration Laws an individual will qualify as a priority worker as an Alien of Extraordinary Ability if:
• the alien has 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,
• the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
• the alien's entry into the United States will substantially benefit prospectively the United States.
A person of extraordinary ability is defined as a person demonstrating 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 and that the alien has sustained national or international acclaim and whose achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (i.e., the Pritzker Architecture Prize, Pulitzer Prize, or Nobel Prize), or at least three of the following:
• Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
• Published material about the alien in professional or other major trade publications or major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
• Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
• Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
• Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
It should also be noted that the list above is not exhaustive as the immigration services will allow comparable evidence as proof of extraordinary ability. A checklist approach in satisfying three of the criteria above does not automatically guarantee approval of the petition. Rather the quality of one’s work, reputation of the publisher, or citations of one’s work by other scholars in the field is essential in a successful petition.
A single reference letter written by a Nobel Laureate about the extraordinary nature of the beneficiary may be sufficient to carry the petition to approval. In contrast a library of letters written by individuals who are not top tier members of the profession will not likely impress the adjudication officer. For example in a recent case, a Japanese sculptor was seeking admission to the United States as an Alien of Extraordinary Ability. Her petition was approved based on her body of work and a single letter from a Chinese artist of international renown whose work had been recognized by the United Nations.
A beneficiary of the petition may also wish to include a citation index showing the number of times his or her work has been cited by others in his or her field. Additionally, if submitting publications, the quality of the professional journal or publisher will also matter, where a well known publisher or recognized journal will be given more weight than self published materials or those of vanity presses.
Entry to Work in the Field of Extraordinary Ability
Beneficiaries of an “extraordinary” petition do not need a U.S. sponsor or employer. The requirement is that the beneficiary must be coming to continue work in the area of his or her expertise. Further, the work need not be in the same research area that initially brought the beneficiary fame so long as it is in the same field. Satisfying this requirement would be easier if the beneficiary already had an employer or a prospective employer. Generally, evidence needed to satisfy this requirement include: 1.) employer letters from current employers or prospective employers verifying a job opportunity, 2.) employment contracts, 3.) a detailed statement from the beneficiary on how he or she will continue their work in the area of expertise, or 4.) any other documentary evidence relevant to meet this requirement.
Substantial Benefit Prospectively to the United States
The final requirement is that the beneficiary will substantially benefit prospectively the United States. The immigration services will generally assume that this requirement is met if the beneficiary is working in an area of expertise as a person of extraordinary ability. This requirement is generally linked with the indices for extraordinary ability stated earlier in this article.
2.) OUTSTANDING PROFESSORS AND RESEARCHERS
An academic will qualify as a priority worker if he or she meets the following criteria:
• the alien is recognized internationally as outstanding in a specific academic area,
• the alien has at least 3 years of experience in teaching or research in the academic area, and
• the alien seeks to enter the United States,
• for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
• for a comparable position with a university or institution of higher education to conduct research in the area, or
• for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
3.) FILING PROCEDURE
A beneficiary must file a form I-140, Immigrant Petition for Alien Worker with the United States Citizenship and Immigration Service Center having jurisdiction over the petition. As of the writing of this article all I-140 visa petitions are filed with the Nebraska Service Center. The current filing fee is $475.
If the beneficiary is outside the U.S. then he or she will obtain permanent residency through a U.S. Consulate abroad. If the beneficiary is in the U.S. then they may, in some circumstances, file an application for permanent residency at the same time they file the I-140 visa petition. As of this writing all priority worker beneficiaries may file concurrent applications for permanent residency with the I-140 visa petition. The application for permanent residency is the form I-485, Application to Adjust Status. If filing form I-485 then one may also file form I-765, Application for Employment Authorization, and form I-131, Application for a Travel Document. The current fee for form, I-485 is $1010 (which includes the biometric fee). Currently there is no filing fee for the initial filing of an applications to obtain a work authorization and travel document. Note: Filing fees are subject to change therefore it is important to ascertain the correct filing fee before filing.
Tuesday, December 18, 2007
Monday, December 3, 2007
Immigration Visa Backlog - Options for Employer and their Foreign Workers
According to the December, 2007 Visa Bulletin foreign workers falling in the EB-3 category and EB-2 workers from Mainland China and India will be affected by a severe backlog of visa numbers. This means there are more individuals wishing to immigrate than there are allotted visas. As a result, foreign workers in the effected categories may have a wait time exceeding 5 years before they are able to file an application to adjust status to that of a permanent resident.
Filing a New Labor Certification as an EB-2
The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification.
If there is a bona fide job offer as an EB-2 and the foreign worker is qualified, filing a new labor certification as an EB-2 may eliminate or dramatically reduce their backlog wait time. This may be especially advantageous for employers who have already filed and have an I-140, Visa Petition approved for a foreign worker. If the I-140 for EB-3 classification has already been approved, the foreign worker may seek to retain the old priority date on the new I-140 as an EB-2.
Filing a New Petition as an EB-1
A petition for EB-1 can be filed for aliens of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. Though rare, we have seen cases that should have been initially filed as EB-1s instead filed as EB-2s, or EB-3s. Those individuals may wish to file a new visa petition as an EB-1 to avoid the backlog. Those with EB-2 or EB-3 I-140 Visa Petitions already approved can seek to retain the priority date of the initially approved I-140.
Individuals may be tempted to file a new petition in an attempt to circumvent the severe backlog. However, a new petition should not be filed unless there is real merit to warrant such a filing. As such a careful examination of your current job duties and its requirements should be made in contrast to the job duties and requirements on which the first petition was based.
No Downside
Many employers and foreign workers have expressed concerns that a new petition may jeopardize their approved visa petition. However, a new labor certification and visa petition as an EB-2 represents a new job offer that is separate and apart from the job offer that supported the EB-3 labor certification and visa petition.
In the case of filing a new petition as an EB-1, one is merely filing a petition seeking benefits in a classification they qualified all along, but had instead chosen to file the initial labor certification and visa petition as an EB-2 or EB-3. There is no risk to the approved visa petition if there is a legitimate step up in job duties, job requirements, and the foreign national qualifies for the new position as an EB-2 or if the foreign worker could have initially filed as an EB-1, but did not.
Filing a New Labor Certification as an EB-2
The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification.
If there is a bona fide job offer as an EB-2 and the foreign worker is qualified, filing a new labor certification as an EB-2 may eliminate or dramatically reduce their backlog wait time. This may be especially advantageous for employers who have already filed and have an I-140, Visa Petition approved for a foreign worker. If the I-140 for EB-3 classification has already been approved, the foreign worker may seek to retain the old priority date on the new I-140 as an EB-2.
Filing a New Petition as an EB-1
A petition for EB-1 can be filed for aliens of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. Though rare, we have seen cases that should have been initially filed as EB-1s instead filed as EB-2s, or EB-3s. Those individuals may wish to file a new visa petition as an EB-1 to avoid the backlog. Those with EB-2 or EB-3 I-140 Visa Petitions already approved can seek to retain the priority date of the initially approved I-140.
Individuals may be tempted to file a new petition in an attempt to circumvent the severe backlog. However, a new petition should not be filed unless there is real merit to warrant such a filing. As such a careful examination of your current job duties and its requirements should be made in contrast to the job duties and requirements on which the first petition was based.
No Downside
Many employers and foreign workers have expressed concerns that a new petition may jeopardize their approved visa petition. However, a new labor certification and visa petition as an EB-2 represents a new job offer that is separate and apart from the job offer that supported the EB-3 labor certification and visa petition.
In the case of filing a new petition as an EB-1, one is merely filing a petition seeking benefits in a classification they qualified all along, but had instead chosen to file the initial labor certification and visa petition as an EB-2 or EB-3. There is no risk to the approved visa petition if there is a legitimate step up in job duties, job requirements, and the foreign national qualifies for the new position as an EB-2 or if the foreign worker could have initially filed as an EB-1, but did not.
H-1B 7th Year Extension and the Visa Backlog
What is an H-1B?
An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation in the United States." INA214(i); 8USC 1184(i)
Limitation on Duration of Stay
An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.
On the 6th Year as an H-1B + Visa Backlog = Trouble
A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation.
Unless a labor certification and visa petition were filed for an H-1B holder at the beginning of their stay, many H-1Bs are faced with the possibility of having to return to their home country because the visa backlog has created a time gap between the end of their H-1B stay and the anticipated time they would adjust their status to that of a permanent resident. Furthermore, employers who have invested resources in training the H-1B worker will lose the benefit of that training, if the foreign worker is forced to leave.
Employers should be aware of the three exceptions to the 6 year limitation of the H-1B visa:
(1) A foreign worker in H-1B status is entitled to an extension beyond the 6 year limitation in 1 year increments IF he or she has a labor certification or I-140 visa petition that has been PENDING for over 365 days;
(2) The same worker is entitled to an additional 3 year H-1B extension beyond the 6 year limitation IF he or she has an approved I-140 visa petition and his or her Employment Based category is subject to the backlog;
(3) The H-1B worker is entitled to get back all days he or she spent outside of the United States, where only actual presence in the United States is counted toward the 6 year limitation imposed by the H-1B visa.
An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation in the United States." INA214(i); 8USC 1184(i)
Limitation on Duration of Stay
An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.
On the 6th Year as an H-1B + Visa Backlog = Trouble
A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation.
Unless a labor certification and visa petition were filed for an H-1B holder at the beginning of their stay, many H-1Bs are faced with the possibility of having to return to their home country because the visa backlog has created a time gap between the end of their H-1B stay and the anticipated time they would adjust their status to that of a permanent resident. Furthermore, employers who have invested resources in training the H-1B worker will lose the benefit of that training, if the foreign worker is forced to leave.
Employers should be aware of the three exceptions to the 6 year limitation of the H-1B visa:
(1) A foreign worker in H-1B status is entitled to an extension beyond the 6 year limitation in 1 year increments IF he or she has a labor certification or I-140 visa petition that has been PENDING for over 365 days;
(2) The same worker is entitled to an additional 3 year H-1B extension beyond the 6 year limitation IF he or she has an approved I-140 visa petition and his or her Employment Based category is subject to the backlog;
(3) The H-1B worker is entitled to get back all days he or she spent outside of the United States, where only actual presence in the United States is counted toward the 6 year limitation imposed by the H-1B visa.
Employment Based Immigration: 3 Steps to Understanding the Process
U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. This article seeks to provide employers with a basic outline of the process.
EMPLOYMENT BASED IMMIGRATION
A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition.
There are 5 categories or preferences within the Employment Based (EB) system, e.g. EB-1, 2, 3, 4, and 5. The vast majority of applicants will likely fall into the EB-2 or EB-3 category. EB-1 petitions involve foreign nationals of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. EB- 4 and 5 pertain to certain special immigrants and investors respectively.
Generally, EB-2 and EB-3 Petitions require a labor certification from the Department of Labor and a job offer. Workers hoping for permanent residency on the basis of an EB-2 or EB-3 petition must generally undergo a three step process.
STEP 1: THE LABOR CERTIFICATION
A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which an employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. Workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management).
A Labor Certification is NOT an Application for Permanent Residency
Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and, H, etc.
STEP 2: THE VISA PETITION
Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents.
The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and education level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will make a petition for either EB-2 or EB-3 classification.
Who Qualifies for EB-2?
An alien worker qualifies for an EB-2 petition, if he or she:
• Has an approved labor certification, unless waived through a National Interest Waiver; AND
• Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the alien worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR
• Possesses an exceptional ability and the job offer requires a person of exceptional ability.
Under the EB-2 classification the Labor Certification requirement may be waived if the criteria can be met through documentary evidence that it is in the national interest to do so called the National Interest Waiver.
Who Qualifies for EB-3?
A foreign worker qualifies for EB-3 if he or she:
• Has a labor certification approved, AND
• is a professional where the worker holds a U.S. baccalaureate degree or equivalent foreign degree and evidence that a baccalaureate degree is required for entry into the profession; OR
• Is a skilled worker who possesses the minimum requirement of 2 years of training or experience.
STEP 3 ADJUSTMENT OF STATUS
A foreign worker may file an application for Adjustment of Status to gain permanent residency if he or she is in the United States, have not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her in his or her Employment Based Preference category, i.e. EB-2 vs. EB-3. Visa numbers represent the numerical limitation established by the State Department of persons allowed to immigrate to the United States within each preference category. If too many petitions are filed subscribing to a particular EB category, then visa numbers for that category may run out resulting in a backlog, i.e. a waiting list develops.
Concurrent Filing of Visa Petition and Application for Adjustment of Status
The visa petition (Form I-140) and application for Adjustment of Status (Form I-485) may be concurrently filed if visa numbers in a particular Employment Based preference are currently available. Otherwise, only the Visa petition (Form I-140) may be filed but not the Application for Adjustment of status(Form I-485).
CONCLUSION
There are many elements to consider when hiring a foreign national. A missed element or mishap in procedure is the difference between a successful and unsuccessful application or petition. A basic understanding of the immigration and labor certification process allows the employer or HR manager to be become better informed to make decisions in meeting the challenges of global recruitment.
EMPLOYMENT BASED IMMIGRATION
A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition.
There are 5 categories or preferences within the Employment Based (EB) system, e.g. EB-1, 2, 3, 4, and 5. The vast majority of applicants will likely fall into the EB-2 or EB-3 category. EB-1 petitions involve foreign nationals of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. EB- 4 and 5 pertain to certain special immigrants and investors respectively.
Generally, EB-2 and EB-3 Petitions require a labor certification from the Department of Labor and a job offer. Workers hoping for permanent residency on the basis of an EB-2 or EB-3 petition must generally undergo a three step process.
STEP 1: THE LABOR CERTIFICATION
A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which an employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. Workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management).
A Labor Certification is NOT an Application for Permanent Residency
Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and, H, etc.
STEP 2: THE VISA PETITION
Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents.
The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and education level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will make a petition for either EB-2 or EB-3 classification.
Who Qualifies for EB-2?
An alien worker qualifies for an EB-2 petition, if he or she:
• Has an approved labor certification, unless waived through a National Interest Waiver; AND
• Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the alien worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR
• Possesses an exceptional ability and the job offer requires a person of exceptional ability.
Under the EB-2 classification the Labor Certification requirement may be waived if the criteria can be met through documentary evidence that it is in the national interest to do so called the National Interest Waiver.
Who Qualifies for EB-3?
A foreign worker qualifies for EB-3 if he or she:
• Has a labor certification approved, AND
• is a professional where the worker holds a U.S. baccalaureate degree or equivalent foreign degree and evidence that a baccalaureate degree is required for entry into the profession; OR
• Is a skilled worker who possesses the minimum requirement of 2 years of training or experience.
STEP 3 ADJUSTMENT OF STATUS
A foreign worker may file an application for Adjustment of Status to gain permanent residency if he or she is in the United States, have not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her in his or her Employment Based Preference category, i.e. EB-2 vs. EB-3. Visa numbers represent the numerical limitation established by the State Department of persons allowed to immigrate to the United States within each preference category. If too many petitions are filed subscribing to a particular EB category, then visa numbers for that category may run out resulting in a backlog, i.e. a waiting list develops.
Concurrent Filing of Visa Petition and Application for Adjustment of Status
The visa petition (Form I-140) and application for Adjustment of Status (Form I-485) may be concurrently filed if visa numbers in a particular Employment Based preference are currently available. Otherwise, only the Visa petition (Form I-140) may be filed but not the Application for Adjustment of status(Form I-485).
CONCLUSION
There are many elements to consider when hiring a foreign national. A missed element or mishap in procedure is the difference between a successful and unsuccessful application or petition. A basic understanding of the immigration and labor certification process allows the employer or HR manager to be become better informed to make decisions in meeting the challenges of global recruitment.
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