PERM Labor Certification

U.S. employers may file a PERM labor certification application on behalf of a foreign worker with the Department of Labor (DOL) based on an offer of permanent, full-time employment in the United States. A labor certification is based on the concept that there are no qualified U.S. workers willing, able, or available to perform a certain job in the designated location and is intended to assure DOL that the company has not offered a wage or working conditions to a non-U.S. worker that adversely affect the wages or working conditions of U.S. workers. A U.S. worker is defined as a U.S. citizen, permanent resident, or other individual who is allowed to work permanently in the United States. An approved labor certification from DOL serves as the foundation for filing an I-140 immigrant visa petition on behalf of a foreign national with U.S. Citizenship & Immigration Services (USCIS).

Prior to filing the PERM application, the job market must be tested through various forms of recruitment. Any U.S. worker who applies for the job and meets the stated minimum requirements is considered qualified (but may not be willing, able, or available). The employer cannot choose the “best-qualified applicant” in the PERM context. Should a qualified, willing, able and available applicant be found, the PERM application cannot be filed.

Special Handling: Under U.S. immigration law, colleges and universities qualify for an exception to the minimally-qualified applicant rule. Such institutions may file a PERM application by establishing that they hired a foreign national professor after a competitive recruitment and selection process that included print advertising in a national publication. Known as Special Handling, this process enables the institution to select the most qualified individual, without regard to whether other minimally qualified candidates applied for the position. The PERM application must be filed within eighteen (18) months of the foreign worker’s selection for the position.  

In either process, the position must remain available to the employee / potential employee until he or she is granted permanent residence. PERM-based cases typically fall into the Employment-Based Second (EB-2) or Third (EB-3) Preference Categories.

Outstanding Researchers & Professors

Immigration law permits employers to file visa petitions without the need for a labor certification on behalf of individuals to whom they have extended an offer of permanent U.S. employment and who can establish that the individual is an outstanding researcher or professor.

To qualify, these individuals must meet the following basic criteria:

• Be internationally recognized as outstanding in a specific academic field;
• Have a minimum of three years of experience in teaching and/or research in that field, which must typically be obtained subsequent to earning a doctorate-level degree. If an individual has less than three years of post-doctoral experience, experience gained while working towards the degree can only be used if the degree was awarded and if either the teaching duties were such that the individual had full responsibility for the class taught or the research conducted toward the degree has been recognized as outstanding; and
• Enter the U.S. in a permanent teaching or comparable research position (permanent is defined as tenure, tenure-track, or for a term of indefinite or unlimited duration) at a university or other institution of higher learning.

If the petition is filed by a private employer, the employer must demonstrate that the department, division, or institute offering the individual a permanent research position already employs at least three full-time researchers and has achieved documented accomplishments in an academic field.

To be successful, it is necessary to provide evidence that satisfies at least two criteria set forth in the regulations:

• Receipt of major prizes or awards; 
• Membership in associations that require outstanding achievements;
• Published material about the alien;
• Evidence that the alien is a judge of the work of others in the field;
• Authorship of scholarly articles; or
• Original scientific or scholarly research contributions.

The evidence will nearly always include letters from experts and colleagues in the academic field attesting to the outstanding nature of the research or teaching ability of the individual.

Outstanding Researcher or Professor petitions fall into the Employment-Based First (EB-1B) Preference Category.

Multinational Executives & Managers

Immigration law also permits employers to file visa petitions without the need for a labor certification on behalf of multinational executives or managers.

The multinational manager or executive beneficiary is eligible for priority worker status if he or she has been employed outside of the U.S. by a firm, corporation, or other legal entity, affiliate, or subsidiary in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition. In the case of a foreign worker presently in the U.S. in nonimmigrant status working for the same employer, affiliate, or subsidiary, the worker must have been employed by the company abroad for at least one of the three years preceding admission to the U.S. as a nonimmigrant. The individual must be coming to the U.S. to continue to work in a managerial or executive capacity, as defined by the regulations.

The U.S. employer must be an affiliate, a subsidiary, or the same employer as the firm, corporation or legal entity that employed the individual abroad. The qualifying international organization must be doing business in two or more countries, one of which is the United States. Doing business means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office.

Multinational Manager or Executive petitions fall into the Employment-Based First (EB-1C) Preference Category.

Extraordinary Ability

Immigration law permits individuals to self- petition for an immigrant visa if they can show that they possess extraordinary ability in their area of expertise. Employers may also file on behalf of individuals in this category without the need for a labor certification.

Individuals of extraordinary ability are defined by statute as those who can show that they have 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 regulations indicate that the individual’s level of expertise must be such that he or she is one of the small percentage who has risen to the very top of his or her field of endeavor.

To be successful, it is necessary to either have received a major, internationally-recognized award (e.g. a Nobel Prize) or to provide alternative evidence that satisfies at least three criteria set forth in the regulations:

• Receipt of nationally or internationally recognized prizes or awards for excellence;
• Published material about the alien in professional or major trade publications or other major media;
• Judging the work of others in the field;
• Original contributions of major significance;
• Authorship of scholarly articles;
• Display of work in the field at artistic exhibitions and showcases;
• Performance in a leading or critical role for organizations or establishments with a distinguished reputation;
• Commanding a high salary or remuneration for services; or
• Commercial success.

Extraordinary Ability petitions fall into the Employment-Based First (EB-1A) Preference Category.

National Interest Waiver

Individuals may self-petition for an immigrant visa if they can show that their admission into the United States without a job offer is in the national interest. Employers may also file on behalf of individuals in this category without the need for a labor certification.

To qualify, these individuals must meet the following three criteria:

• Seek employment in an “area of substantial intrinsic merit”;
• Proposed benefit of the work must be “national in scope”; and
• Demonstrate that the national interest would be adversely affected if a labor certification is required.

The individual also must have at least the equivalent of a U.S. Master’s degree (or a Bachelor’s degree and five years of progressive experience in the relevant specialty), or be able to demonstrate exceptional ability in his/her field.

As illustration, USCIS has in the past favorably considered evidence that the individual’s admission will improve: the national economy; wages and working conditions of U.S. workers; education and training programs for U.S. children and under-qualified workers; healthcare; provision of affordable housing; or the environment in the U.S. and make for more productive use of natural resources.

National Interest Waiver cases fall into the Employment-Based Second (EB-2) Preference Category.

I-485 Application to Adjust Status to Permanent Residence

If an individual is in the United States in valid status and an immigrant visa number is currently available, he or she may file Form I-485 concurrently with the I-140 immigrant visa petition. If an immigrant visa number is not available, the individual must wait until the USCIS Adjustment of Status filing chart indicates that the priority date is current for purposes of filing the I-485.

At this stage in the process, the individual’s spouse and/or minor children may also file I-485 applications. A separate I-485 application must be filed for every applicant for permanent residence, based on the primary applicant’s I-140 petition. When the I-485 application is filed, applicants are also eligible to apply for Employment Authorization (EAD) and Advance Parole (AP). An EAD allows for unrestricted work authorization in the United States. AP allows an adjustment of status applicant to travel abroad while his or her application is pending without abandoning the application. It also provides a means for re-entry into the United States. EAD and AP applications are usually concurrently-processed and issued as a single combined document, valid for one to two years, which can be renewed for as long as the I-485 application remains pending.

U.S. permanent resident status is granted upon the approval of the I-485 application.

Consular Processing

If an individual is pursuing permanent residence from outside the United States, or chooses not to Adjust Status via Form I-485 in the United States, he or she may apply for an immigrant visa through consular processing. Consular Processing begins through a selection on the I-140 petition indicating that the individual intends to process through a specific Consulate – typically the Consulate with jurisdiction over the individual’s place of residence, or through a supplemental filing if the decision is made later, and listing any accompanying family members who will also be applying. After the I-140 petition is approved, the National Visa Center is notified to begin the Consular Process by gathering fees, documentation and information. Once an immigrant visa number is available to an applicant (or will be soon), he or she is scheduled for an in-person interview at the designated Consulate, typically with only a few weeks’ notice. The immigrant visa application is generally adjudicated at the interview, or a request for additional information or evidence is made. Following approval of the application, the individual will receive an immigrant visa stamp in his/her passport, and must pay the USCIS Immigrant Fee online and enter the United States within six months of visa issuance. The individual does not become a permanent resident until he or she enters the United States using the immigrant visa.