2020 AILA Virtual Annual Conference on Immigration Law
July 20/23 - 2020
Residence Through Employment
It is possible to obtain lawful permanent residence through employment, whether you are in the United States or abroad. Whether you already have your own business in the U.S., want to open one, or have an offer of employment, we can assist you.
- EB-1 Extraordinary Ability
The term "extraordinary ability'' is defined as "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''. The law specifies initial evidence which must be submitted to establish that the alien "has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Such evidence must include evidence of a one-time achievement (i.e. a major internationally recognized award) or at least three of the following:
- Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of 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 foreign national in professional or other major trade publications or major media, relating to his or her 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 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 original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- Evidence of authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of the foreign national's work in the field at artistic exhibitions or showcases;
- Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence that the foreign national 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 disk, or video sales.
If the above do not readily apply to the occupation, the petitioner may submit comparable evidence to establish eligibility. Technically meeting the initial evidence requirement does not guarantee that the individual will be found to be of extraordinary ability. CIS will consider the totality of the evidence.
- EB-1 Multinational Managers and Executives
Considered to be a “first preference priority worker” the Multinational Executive category (EB-1) applies to managers or executives who have been employed abroad for one of the last 3 years, and will be transferred to a U.S. affiliate or subsidiary of the company abroad. A qualifying relationship between the multinational executive’s foreign employer and the newly or existing U.S. entity must be established. Moreover, the multinational executive must have the intention to enter the U.S. to continue to render services for the same employer, subsidiary, or affiliate in a managerial or executive capacity. The managerial duties the executive must perform are, in general, the following: directing the management of the organization or a component or function; establishing goals and policies; exercising discretion over the company; and receiving general supervision and direction only from higher level executives, board of directors or stockholders. The foreign company and the U.S. company must be active, operating entities conducting substantial business. The activities held by the U.S. company must truly require an executive or manager to lead the company’s operations. The spouse and unmarried children under 21 of the multinational executives may apply with the principal.
- EB-2 Advanced Degree, Exceptional Ability and National Interest Waiver
The second preference category is available to those with a job offer who can demonstrate that they have an advanced degree or can demonstrate exceptional ability. Generally a labor certification is required; however, the job offer and labor certification requirement can be waived if the foreign national can show that the proposed work has substantial merit and national importance, that the individual is well-positioned to advance the proposed endeavor, and that it would be beneficial to the U.S. to waive the job offer and labor certification requirements.
- Labor Certification
In order to obtain permanent resident status in the United States through Labor Certification, a job offer in a field in which the prospective employee has experience, education or both is necessary. The rate of pay offered must be the prevailing wage for the position, meaning either the amount specified in the Collective Bargaining Agreement, or, if none, the wage the Department of Labor determines is normally paid for that position. Unreasonable requirements for the position must not be imposed, or the Department of Labor will counter that the job is “tailor made” for the prospective employee and that the job is not truly open to U.S workers.
The application is submitted to the U.S. Department of Labor, to prove that there is a shortage of U.S. workers in that particular occupation in the geographical area where the employer is located. In order to demonstrate this, prior to filing the case, advertisements must be placed in two Sunday editions of the newspaper of general circulation. Professional positions require additional recruitment steps, such as a local or ethnic newspaper, on-line advertising, radio advertisement, or others. If any qualified available U.S. workers respond, the application cannot continue.
Once the ads are completed, the application is submitted online to the U.S. Department of Labor. The Department of Labor may issue an audit, requesting evidence of the recruitment conducted and any other information they need. Please note that the filing of a labor certification does not confer any legal status, nor authorization of employment for the applicant.
Once the application is certified, it must be filed with the United States Citizenship and Immigration Services (USCIS) within 180 days, along with the immigration petition (Form 1-140), and a letter from the prospective employer stating that a job offer is still open. In order to document that the company can pay the prospective employee’s salary, the employer must also submit income tax returns of the company, beginning with the year the case was initially filed with the Department of Labor. If tax returns are not available, USCIS may accept audited financial statements. There is an exception for companies with at least 100 employees, providing that a statement from the Chief Financial Officer of the company may be sufficient.
Additionally, the petition must include documentation to prove that the prospective employee has the education and/or experience required for the position, as stated on the application. This is usually in the form of school records, diplomas and/or letters of experience from previous employers. Experience or education gained while working with the prospective employer cannot be considered.
The 1-140 petition may be filed concurrently with the adjustment of status application, Form 1-485, if a visa is immediately available. The applicant’s immediately family may also be included, if they are in the U.S. and are otherwise eligible, and all may be issued authorization of employment after filing. If eligible, each applicant for adjustment of status may also obtain a travel permit, and will be permitted to remain in the US. in legal status until USCIS adjudicates their cases.
Please note that it is not necessary for the prospective employee to work for the employer during the pendency of the above procedures. However, the employee must have the good faith intention to work for the employer once the residence is approved. Similarly, the employer must have the good faith intention to hire the employee once the residence is approved.
- Religious Workers
An immigrant petition can be filed for a religious worker who has been a member of a religious denomination having a nonprofit organization in the U.S. for at least two years, and the individual has been working for at least 2 years as a minister or in a religious vocation or occupation immediately before filing the petition. The person must be coming to work in a full-time, paid position, to work as a minister or in a religious vocation or occupation. This petition requires a church or religious organization to serve as sponsor of the petition.
Once the immigrant petition is approved by CIS, we can file an application for permanent residence. The applicant’s spouse and unmarried children under 21 may also apply.
A foreign national may obtain conditional residency (valid for 2 years), and subsequently lawful permanent residence through investment in a U.S. commercial enterprise. In order to qualify for conditional residence under this program, the following requirements must be met:
- The foreign national must invest at least $1 Million U.S. dollars in the business. Note, this requirement is reduced to $500,000 if the business is located in a targeted employment area, which includes rural areas with a population of less than 20,000, or a geographical area determined by the Department of Labor to have an unemployment rate equal to 150% of the national average.
- The investor must be able to prove lawful source of the funds being invested, and that the funds belong to the investor.
- The funds invested must be “at risk.”
- The investment in the business must create jobs for at least 10 U.S. workers.
- The investor will serve as a corporate officer or director, involved in management and policy-making.
The requirements for the EB-5 program can be met by investing in a troubled business which has lost at least 20% of its net worth, if the investor can establish that current employees will be retained.
Further, an investor may participate in the EB-5 program by investing in a Regional Center with multiple investors, as long as all the other legal requirements are met.
Our office handles EB-5 cases for both individual investors as well as Regional Center investors. We also represent those projects wishing to apply to USCIS for designation as a Regional Center.
2020 AILA Virtual Annual Conference on Immigration Law
July 20/23 - 2020