Employment Based Immigration: Boston Massachusetts Immigration Lawyer, Monique Kornfeld

The most common way of securing legal permanent residency through employment is by filing a labor certification application, the first stage in most employment-based immigration cases. This requires recruitment by the United States employer to test the labor market in order to determine if there any available, willing, able and qualified United States workers.

However, the labor certification process has many restrictions and hurdles to overcome. Also, should the labor certification application be one that was filed pre-PERM and currently pending at a Department of Labor Backlog Reduction Center, then the processing time could be lengthy. Therefore, the alien should seriously consider filing a special type of immigrant visa petition that circumvents the labor certification process.

It should be emphasized that even if a special type of immigrant visa petition is filed, with the growing backlogs for immigrant visas and the restrictions and caps on nonimmigrant visas, it is still important to develop sound immigration strategies to maintain an alien's legal status in the United States while the labor certification or immigrant visa petition is pending. An alien may not apply for an immigrant visa abroad or adjustment of status to legal permanent residency in the United States until a visa number is available.

It is critical for an alien to maintain his or her temporary status in the United States in order to preserve his or her eligibility for obtaining legal permanent residency while remaining in the United States through the process called "adjustment of status." In most situations, an alien will be barred from applying for adjustment of status if he or she has not maintained continuous lawful status in the United States. Also, if the alien decides to depart the United States to obtain an immigrant visa abroad, the alien may be subject to the three or ten-year bar to reentry depending the length, nature and timing of the alien's unlawful presence in the United States. Once an alien has applied to adjust status, then he is in lawful status as an applicant for adjustment of status and may obtain travel and employment authorization. (It should be emphasized that if the alien had acquired a certain period of unlawful presence in the United States before filing for adjustment of status, then he may subject himself to the three or ten-year bar to reentry should he travel abroad on advance parole while his application to adjust status is pending.)

Several provisions of immigration law assist the alien in maintaining his or her nonimmigrant status beyond the statutory limitations until he or she may apply for adjustment of status to legal permanent residency. First, the nonimmigrant visa status may be extended beyond the statutory limit when the alien is a beneficiary of an approved employment-based immigration petition and is subject to per country limitations. In this situation, the alien may apply for a one-time extension of nonimmigrant status that is valid until the application for adjustment of status has been adjudicated. Second, an H-1B alien may extend his or her status in one-year increments beyond the six-year limit if 365 days have elapsed since the filing of either a labor certification application or an employment-based immigrant visa petition on the alien's behalf. The extensions continue until the adjustment of status application has been adjudicated.

If the alien is unable to take advantage of the above two laws, other immigration provisions allow for an alien who has acquired unlawful presence in the United States to still apply for adjustment of status. Under the Legal Immigration Family Equity (LIFE) Act Amendments of 2000, an alien who has violated the terms of his lawful status in the United States or has entered the United States illegally may apply for adjustment of status under INA § 245(i) as long as the alien is the beneficiary of a visa petition under INA § 204 (e.g. Form I-140 for employment-based petitions or Form I-130 for family-based petitions) or an application for labor certification filed on or before April 30, 2001. The alien must pay a penalty fee of $1,000 along with the application to adjust status. Alien beneficiaries of labor certifications applications or immigrant visa petitions that were filed subsequent to January 14, 1998 and up until April 30, 2001, must also demonstrate that they were physically present in the United States on December 21, 2001, the date the LIFE Act was enacted. Other types of applications and petitions - such as asylum applications, diversity visa applications and diversity visa lottery-winning letters - do not serve to grandfather the alien for purposes of § 245(i).

Also, under INA § 245(k) certain aliens who: (1) were lawfully admitted to the United States and who (2) are eligible to receive an employment-based immigrant visa under INA § 203(b), paragraphs (1), (2), or (3), or § 203(b)(4), in the case of a ßÝ101(a)(27)(C) religious worker, are eligible to apply for adjustment provided that subsequent to their admission they have not, for an aggregate period of more than 180 days failed to continuously maintain a lawful status, engaged in unauthorized employment, or otherwise violated the terms and conditions of their admission.

Because of these considerations, the alien and the employer should quickly commence the process of applying for legal permanent residency so that they do not fall into the many potential traps created by the complicated web of new immigration laws.

PERM Labor Certification Application

The labor certification procedure is intended to assure that the employer is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that the employer has not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers. If the labor certification procedure locates any U.S. workers who meet employer's minimum requirements (education, experience, training) for the position, the application to obtain permanent residence for the alien employee will not be approved.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified, available, willing and able, although it will not force the employer to hire such worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating U.S. job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

The DOL requires that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification should that applicant also be available, able and willing. Further, the DOL will consider a candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job’s minimum requirements.

The first step before filing the PERM labor certification application is obtaining a prevailing wage from the SWA (State Workforce Agency). The employer must pay at least 100 percent of the prevailing wage offered in the area of intended employment.

In the six months prior to filing an application, employers are required to place a job order with the SWA, place a notice of posting at the worksite, and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods. Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

One exception to the Sunday newspaper-advertising requirement is when an employer can document that a rural newspaper that is appropriate for recruiting has no Sunday edition in the area of intended employment. The exception applies only to rural newspapers. If a suburban newspaper has no Sunday edition, the employer must publish a Sunday advertisement in the most appropriate city newspaper that serves the suburban area. Another exception to the Sunday advertising requirement is that if the job requires experience and an advanced degree, and a journal advertisement is appropriate for the job opportunity, then the employer has the option to use a journal advertisement in lieu of one of the Sunday print advertisements.

Employers of professionals are required to conduct three additional types of recruitment, which are:

The employer must use three different types of recruitment on the list of additional sources. The online job listing, even if posted in conjunction with a print advertisement, qualifies as an additional recruitment step. All of the additional steps must take place within six months of filing the case and only one of the additional steps may take place within 30 days of filing.

Employers under PERM will need to prepare a recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The Certifying Officer (CO), after reviewing the employer's recruitment report, may request the US workers' resumes or applications, sorted by the reasons the workers were rejected.

Once a petition is filed, the form must be printed out and signed by an employer immediately. A copy of the signed form must be maintained in the employer's files and the original signed application must be submitted to support the I-140 immigrant petition that is submitted to the USCIS.

Following submission of the PERM labor certification application, the DOL may perform an audit of the employer. Audits will either be based on various selected criteria or conducted randomly.

If DOL audits a case, then it will send an audit letter requesting additional documentation to be submitted within 30 days of the audit letter, although the (Certifying Officer) CO has the discretion to grant an extension by up to 30 days. The documentation will be reviewed by an Employment and Training Administration (ETA) official and either certified or denied. The CO also has the authority to request additional information before making a final determination. In addition, the CO has broad discretion in audited cases of ordering the employer to conduct supervised recruiting.

If the CO decides that the labor certification should be granted, the officer will send the certified application and complete Final Determination to the employer or the employer's attorney or agent indicating that the next step is to file the form along with an immigrant petition to the U.S. Citizenship and Immigration Services.

If the CO decides the case is to be denied, a Final Determination shall issue. The employer will have 30 days to appeal the determination. A new application may be filed at any time, although a new application in the same occupation for the same worker cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.

If the CO finds that the employer failed to produce required documentation, the documentation was inadequate, finds that a material misrepresentation was made, or finds it otherwise appropriate, the employer may be required to conduct supervised recruitment in future labor certification filings for a period of up to two years from the date of the Final Determination.

Special Immigrant Visa Petitions

The following is a discussion of the different immigrant visa classifications that bypass the labor certification process. Some of these do not require a job offer or employer sponsor and the alien may self-petition.

The special immigrant visa petition called the National Interest Waiver is in the EB-2 immigrant visa category and the Extraordinary Ability, Outstanding Researcher and Multinational Executive/Manager petitions are under the EB-1 category. This distinction becomes critical if immigrant visa numbers are exhausted. Usually, the visa numbers first run out in the EB-2 category. Thus, obtaining an approval of an EB-1 immigrant visa petition is far more attractive, especially to aliens from India and China.

Extraordinary Ability Alien (EB-1)

Workers 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 define extraordinary ability 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." In other words, the worker should be the cream of the crop.

Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize. Other lesser awards might also qualify, but we will have to document that the particular award rises to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the worker has not received a single high-ranking, distinguished, internationally recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
Published material about the alien in professional or major tradepublications or major media relating to the alien's work in his field;
Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
Evidence of the alien's original contributions of major significance to the field;
Authorship of scholarly articles in the field, in professional journals or other major media;
Display of the alien's work at artistic exhibitions or showcases;
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
Evidence that the alien commands high remuneration in relation to others in the field;
Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Outstanding Researcher (EB-1)

In order to qualify as an "outstanding researcher," the alien must demonstrate that he or she is internationally recognized as outstanding in a specific area. The Immigration and Naturalization Service requires the showing of at least two of the following in order to satisfy this test:

Receipt of major prizes or awards for outstanding achievement in the academic field;
Membership in associations in the academic field that require outstanding achievements of their members;
Published material in professional publications written by others about the alien's work in the academic field;
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
Evidence of the alien's authorship of scholarly books or articles in the academic field.

The alien must have at least three years of research experience in his or her field. There must also be a job offer from an employer.

Multinational Transferee, Executive and Manager (EB-1)

To obtain permanent residency as a Multinational Executive or Manager, the alien must have been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or, in the case of certain foreign workers presently in the U.S., one of the three years preceding entry to the U.S. as a non-immigrant. The past employment must have been with the same employer, an affiliate, or a subsidiary of the employer. The foreign worker must be coming to work in an executive or a managerial capacity. There must have been relationship for at least one year between the two affiliated companies.

National Interest Waiver (EB-2)

Foreign professionals who hold at least a Master's Degree or can prove exceptional ability in certain fields are eligible for legal permanent residence as advanced degree professionals absent the labor certification requirement. If the foreigner's field benefits the national interest (improves the United States economy, health care system, environment, education, housing, culture, technology, etc.) and the foreigner can submit evidence of prospective significant contributions to his or her field, he or she may qualify for a "National Interest" waiver from the labor certification process. In particular, the alien must satisfy the requirements of the recent precedent National Interest Waiver case of Matter of New York State Dept. of Transportation, which requires that:

The alien is seeking employment in an area of "substantial intrinsic merit";
The alien's prospective benefit is national in scope; and
"The alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

Evidence submitted in support of the national interest waiver includes that filed in support of the extraordinary ability and outstanding researcher petitions (publications, presentations, awards, patents, etc.). The alien may self-petition or be sponsored by an employer.

Immigrant Investor Petition (EB-5)

An alien entrepreneur may seek immigrant status if he or she seeks to establish a new commercial enterprise:

That the alien has established;
In which the alien has either invested, or is in the process of investing $1,000,000 (or $500,000 for target employment areas); and
Which will benefit the United States economy and create ten full-time employment positions for United States citizens or lawful permanent residents (other than the spouse, daughter or son of the alien investor).

The INS does not require immediate creation of 10 full-time positions for United States workers. If such workers in fact are already on the payroll of the organization at the time the investor is applying for a visa, tax records or INS I-9 forms (Employment Eligibility Verification) or other documentation may be supplied. However, in the more likely situation that the investment enterprise will only exist after the entrepreneur enters the United States, a copy of a comprehensive business plan projecting a need for no fewer than 10 qualified employees within two years and their anticipated hiring dates will be accepted.

A business plan should include the following:

How the commercial enterprise is organized (whether as a corporation, general or limited partnership, business trust, joint venture, holding company, sole proprietorship, or other entity);
The concept and purpose behind the enterprise;
A description of the physical premises, including photographs (if available), or drawings of the planned premises if not yet constructed;
Financial forecasts and projections for implementation of the business plan, including requested capitalization and anticipated return on investment, and estimated timetables for construction, commencement of operations, and hiring;
Specific market research demonstrating that the target area for business will support it; and
Credentials of key persons responsible for development and management of the business enterprise, including the investor if appropriate.

The business plan should be straightforward and comprehensible to ensure the investor understands all aspects of the investment, and so that INS adjudicators will know in a brief review that the investment will satisfy statutory and regulatory requirements for conditional residence.

Immigrant investors and their spouses and children enter the U.S. in conditional permanent resident status subject to termination after two years. To preserve permanent resident status, they must petition for removal of the condition during the 90-day period before the second anniversary of their original admission.

The petition for removal of the condition must include evidence that a commercial enterprise was established and that the petitioner "invested or was actively in the process of investing the requisite capital." The investor must also show that he or she "sustained" these actions throughout the period of the investor's residence in the United States.

One caveat for alien immigrant investors: the United States taxes such investors for their worldwide income during their two-year conditional residency.

If you wish to investigate your eligibility for legal benefits discussed on this site, please consult with Attorney Monique Kornfeld:

Employment-based Immigrant Visa

PERM Labor Certification Application

Special Immigrant Visa Petitions

Extraordinary Ability Alien (EB-1)

Outstanding Researcher (EB-1)

Multinational Transferee, Executive and Manager (EB-1)

National Interest Waiver (EB-2)

Immigrant Investor Petition (EB-5)