EMPLOYMENT-BASED PERMANENT RESIDENCY

Ben D. Huynh was formerly in-house immigration counsel with Motorola, Inc., a Fortune 200 company, and has reviewed and supervised the filing of hundreds of employment-based permanent residency applications for foreign national employees and their dependent family members.

Notably, Ben has achieved a very high success rate of winning First Preference-Extraordinary Ability and Outstanding Researcher cases and Second Preference-National Interest Waiver cases. Our firm’s 80% success rate is far above the national average of 50% success rate for these types of cases.

Please contact us at (972) 992-8181 or at info@bdhimmigration.com for additional information.

The Employment-Based Permanent Residency process allows U.S. employers to sponsor foreign nationals in specific preference categories for U.S. lawful permanent residency status. The three main employment-based preference categories are:
 

First Preference: Priority Worker
(1)	Alien of Extraordinary Ability
(2)	Outstanding Professor or Researcher
(3)	Multinational Executive or Manager
Second Preference: Advanced Degree Professional or Alien of Exceptional Ability
(1)	Professional with Advanced Degree (i.e. Masters, Doctorates)
(2)	Alien of Exceptional Ability
**	National Interest Waiver Exception
Third Preference: Skilled Worker
(1)	Position requiring a minimum of Two Years of Training, Education or Experience
(2)	Position requiring a minimum of a Bachelors Degree
(3)	Position requiring less than Two Years of Training, Education or Experience

All Third Preference cases and most Second Preference cases (with the exception of National Interest Waiver-eligible cases) require the completion of THREE steps, including a Labor Certification attestation, for the employee to obtain U.S. permanent residency status. First Preference cases and National Interest Waiver cases are Labor Certification-exempted and therefore only require the completion of TWO steps for the employee to obtain U.S. permanent residency status.

Generally, the above three Preference categories require a U.S. employer to sponsor the foreign national. A foreign national may also self-sponsor for U.S. permanent residency in either the First Preference-Alien of Extraordinary Ability or Second Preference-National Interest Waiver category.

STEPS FOR EMPLOYMENT-BASED PERMANENT RESIDENCY

LABOR CERTIFICATION (STEP ONE)

A Labor Certification, typically the first step in the employment-based permanent residency process, is the procedure by which the U.S. Department of Labor (DOL) determines (1) that no U.S. workers can be found who are able, available, qualified and willing to fill the position that the sponsoring U.S. employer intends to fill with a foreign national; and (2) that the foreign national’s employment will not adversely affect the wages and working conditions of similar situated U.S. workers.

The U.S. DOL requires that all new labor certification applications filed on or after March 28, 2005 must be filed under the new Program Electronic Review Management (PERM) regulations. In theory, PERM labor certification applications will be screened and either be certified (approved), denied or selected for audit within sixty (60) days of filing the application.

Highlights of PERM include:

Prevailing Wage Determinations under PERM will be obtained from the appropriate state workforce agency (i.e. Texas Workforce Commission). Employers are required to pay 100%, rather than 95% for pre-PERM labor certification applications, of the prevailing wage once the Adjustment/Permanent Residency Application (typically the third step) is approved. PERM implements a four-tier wage scale to determine the prevailing wage.

Recruitment under PERM requires the sponsoring employer to conduct a recruitment campaign for six months prior to filing the PERM labor certification application with DOL. Recruitment under PERM distinguishes between Basic (Non-Professional) Positions and Professional Positions:

Basic (Non-Professional) Positions require a job order placement and a prevailing wage determination from the state workforce agency (i.e. Texas Workforce Commission), two Sunday newspaper ads, and a job posting at the job site;

Professional Positions require a job order placement and a prevailing wage determination from the state workforce agency, two Sunday newspaper ads (or substitution of a professional journal ad for one of the newspaper ads) and three additional recruitment efforts, such as internal company website postings, internet job search postings, journal ads, radio and television ads, private employment firms, university campus placement recruitments, job fairs and/or other recruitment efforts.

The advertisement must identify the employer and job location and include a sufficient job description. It does not need to include the offered salary.

Conversion of Pending Standard or Reduction in Recruitment (RIR) labor certification applications to PERM is possible. The employer may choose to either continue with the Standard or RIR labor certification application filed prior to March 28, 2005 or to withdraw a previously filed standard or RIR labor certification application and refile under PERM. However, the re-filed application must meet all of PERM’s new requirements, including being an “identical job opportunity to the original labor certification filing, or will otherwise be denied with a loss to the application’s original priority date. In other words, if the DOL Certifying Officer determines the PERM application is NOT identical to the original filing, the foreign national employee would lose his or her original Priority Date and possibly lose his or her eligibility for one year H-1B temporary visa extensions beyond the six-year H-1B maximum period of stay.

IMMIGRANT PETITION (STEP TWO)

An Immigrant Petition for Alien Worker is typically the second step in the employment-based permanent residency process. Alternatively, an Immigrant Petition could be the first step for foreign nationals who qualify for one of the Labor Certification-exempted First Preference classification (i.e. Aliens of Extraordinary Ability, Outstanding Professors and Researchers or Multinational Executives and Managers) or for the Second Preference-National Interest Waiver category (i.e., where the labor certification requirement is “waived” in the U.S.’s national interest).

The Immigrant Petition is the U.S. employer’s formal offer of permanent or indefinite employment to the foreign national employee. In the Immigrant Petition, the employer must verify its offer of employment to the employee and prove its ability to pay the offered wages to the employee. The foreign national employee must show that he meets the education and experience requirements required for the position as described in the approved Labor Certification or that he or she meets the legal requirements for the Labor Certification-exempted category (i.e. a First Preference-Alien of Extraordinary Ability must prove he or she has obtained “sustained or international acclaim placing him or her in a small percentage of individuals who have risen to the very top in his or her field of endeavor”, etc.).

APPLICATION FOR U.S PERMANENT RESIDENCY (STEP THREE)

The third and final step in the employment-based permanent residency process (or the second and final step for Labor Certification-exempted cases) is the foreign national’s application for U.S. permanent residency (“green card”). Dependent family members may file with the employee for U.S. permanent residency status at this point.