U.S. IMMIGRATION SYSTEM | PERMANENT RESIDENCE | EMPLOYMENT BASED
In many realms of U.S. immigration law, permanent residence is derived from an alien’s status – that is, in family-based immigration, the status of having a close family relationship with a nuclear family member or in the refugee/asylum context, the status of suffering from a well-founded fear of persecution. But in the area of employment-based immigration, the calculus is somewhat different in that the goal here is somehow to show that the foreign national’s attainment of permanent residence will benefit the economic competitiveness or social life of the United States. And it is growing precisely this injection of broader socio-economic concerns that has resulted in a complex and at times muddled set of laws and regulations governing the attainment of permanent residence based upon employment.
TWO BASIC AREAS OF CONCERN
Our clients consistently want to know two key considerations when undertaking the process of permanent residence based upon employment:
- SUBSTANCE: that is, under law, how does a foreign national, in substance, qualify for permanent residence; and
- TIME: that is, the length of time required to achieve permanent resident status.
In any given employment-based immigration case, there are two primary time-consuming considerations:
- government processing times of the required petitions and applications; and
- delays arising from the system of numerical limitations, or as it is more popularly known, the “quota”.
A. Government Processing Timelines
Various government agencies are empowered to process different portions of an employment-based immigration case. For example, the Department of Labor processes labor certification applications which is the first filing made in most employment-based cases; the USCIS processes the employer’s or in some cases in which the foreign national self-petitions, the alien’s immigrant visa petitions; the State Department processes applications for immigrant visas as dispensed through the system of U.S. Consulates abroad. In general, there has been a speed-up in processing times compared to the situation in previous periods, and in some cases, it is possible to request Premium Processing, which is an expedited processing procedure.
The processing time of the I-1485 Adjustment of Status Application, although shorter than had previously been the case, can be maddeningly elongated, principally due to the mandatory background security check as initiated by the USCIS but then completed by the FBI and other federal security-related agencies. While the norm in processing adjustment applications generally is in the range from 5-12 months, there are all too many instances – as disproportionately experienced by foreign nationals from the Middle East – in which adjustment processing drags on for substantially greater periods of time.
B. Quota Backlogs
The second dynamic affecting the time required to attain permanent residence arises from the immigration system of numerical limitations, or the “quota.”
At present, the number of “green cards” based upon employment is capped at 140,000 per year. Acting under the basic principle of supply-demand, backlogs build up whenever the demand for employment-based “green cards” exceeds supply. Given the current relative strength of the U.S. economy and a growing reliance upon foreign workers to meet legitimate U.S. business objectives, the current numerical cap is clearly insufficient with the result that backlogs either have developed or are now in the process of developing in the various employment-based preference category.
An alien registers his/her place at the time that the first filing is made in an employment-based case – that is, either upon the filing of a Labor Certification Application or, in non-labor certification cases, the filing of an I-140 Immigrant Visa Petition. This registration date is technically known as an alien’s “Priority Date.” As the quota-induced backlog line continues to lengthen, it becomes increasingly important to establish a priority date as early as possible in a foreign national’s immigration planning cycle.
The numerically based delays do not result solely from the worldwide quota. Our employment-based immigration system is arranged in five hierarchical preference categories, each with its own quota ceiling:
- First Preference (Priority Worker): 40,000
- Second Preference (Alien’s of Advanced Degree or Exceptional Ability): 40,000
- Third Preference (Professional, Skilled and Unskilled): 40,000
- Fourth Preference (Religious Workers): 10,000
- Fifth Preference (Foreign Investors): 10,000
Therefore, going back to the supply-demand model, various preference categories can and do become oversubscribed. Specifically, the worldwide Third Preference has exhibited backlogs over the years, and we expect to see backlogs to develop in this coming fiscal year in the Worldwide Second Preference classification.
In addition to the worldwide quota and the numerical ceilings attached to each of the preference categories, there is a third element that induces backlogs in our quota system, and that is the per country quota. Under our immigration laws, no more than 7% of the employment-based immigration numbers can go to natives of any single country. Owing to a high number of highly educated professionals from India and China – as well as the large populations of these countries – the Second Preference numbers for India and China have become backlogged, thereby substantially prolonging the time required to attain permanent residence for advanced degree professionals from these two countries. In addition, traditionally, Mexico and the Philippines – both of which are large immigrant provider countries to the United States – have also recurrently exhibited unnaturally long backlogs in their quota lines.
QUALIFYING FOR PERMANENT RESIDENCE
As noted above, the key concept in employment-based immigration cases is to show that the foreign national’s attainment of permanent residence will somehow benefit the economy of the United States. In most cases, this requires an employer to file a Labor Certification Application so as to show that the permanent residence of a foreign national will not harm the U.S. labor market by either taking a job away from a fully qualified U.S. worker or by depressing the wages of similarly employed workers in the area of employment. In other cases, though, a foreign national is able to skip over entirely the Labor Certification Application process if it can be shown that his/her permanent residence with benefit U.S. business and/or social interests.
PERM-Based Immigration Cases
Most employment-based immigration cases start with the employer’s filing of a Labor Certification Application. Specifically, all employment-based Third Preference cases require the employer’s filing of a Labor Certification Application; with the exception of National Interest Waiver cases, all Second Employment-Based Preference cases also require the filing of a Labor Certification Application. Therefore, each year, anywhere up to roughly 75,000 “green card” cases start with the Labor Certification Application process.
Most employment-based immigration cases involve the following three discrete stages:
Labor Certification Application under the PERM procedures. Here, the employer needs to go through a mandatory recruitment/advertising effort in order to establish the unavailability of fully qualified U.S. workers for a position being offered to the foreign national. Upon conclusion of the recruitment/advertising effort, the employer needs to file a Labor Certification Application. Effective March 28, 2005, the U.S. Department of Labor entirely reengineered this process into the Program Electronic Review Management (PERM) system. While this new PERM system has unquestionably resulted in substantially faster government processing times, it also creates a quite inflexible and unforgiving system that can create pitfalls and legal exposure for many employers. Owing to both the importance and complexity of the PERM processing system, please see our related article.
- I-140 Petition. Once the PERM application has been approved, the employer then needs to file its I-140 Immigrant Visa Petition to USCIS. Here, the employer needs to do the following: 1) reiterate its desire to employ the alien in a permanent fulltime position; 2) establish that it has the ability to pay the wages for the job being offered to the foreign national; and 3) establish that the foreign national meets fully the requirements of the job.
- Alien’s application for permanent residence. Assuming availability of an immigrant visa number under the quota system, the final step of the immigration case consists of the alien’s own personal application for permanent resident status. In most instances, this is accomplished through the filing of an I-485 application to adjust to permanent resident status in which the application’s filing is made to USCIS. Roughly 90 days after filing the adjustment of status application, the foreign national will receive the interim benefits of an Employment Authorization Document (EAD) and Advanced Parole (AP), which authorize employment and reentry following trips abroad, respectively. Most adjustment of status applications are now being processed within a 5-12 month timeframe, although there are certainly innumerable instances in which final approval is delayed pending the U.S. government’s background security check.
In juxtaposition to the adjustment process, a foreign national could also process for permanent residence through a U.S. Consulate abroad. This is known as Consular Processing. Essentially, this process requires a foreign national to apply for an immigrant visa through a U.S. Consulate, normally located in the alien’s home country. Previously, Consular Processing was much more time-efficient than the adjustment of status process, but now the two processes are roughly durationally equivalent. Particularly in this post-9/11 period of time with this increased emphasis on security concerns, it is generally preferable for foreign nationals to file adjustment of status applications so as to gain the safety and security of physically being in the United States while their final requests for permanent residence are being processed.
Cases Not Requiring Labor Certification Applications
At core, the Labor Certification Application process requires an employer to undertake a rigorously mandated recruitment/advertising effort in order to establish the unavailability of fully qualified U.S. workers for the position. There are, though, a number of instances in which it is possible to avoid entirely the Labor Certification Application process, generally for cases in which the alien’s professional/employment services clearly and palpably benefit the United States.
The major types of employment-based cases qualifying for this exemption to Labor Certification are the following:
Priority Worker Petition - Aliens of Extraordinary Ability: Here, the standard is to show that the foreign national through “sustained national or international renown” possesses superlative abilities in the field of endeavor. This classification is intended to cover the immigration cases of a select number of foreign nationals who have clearly attained preeminence in their own field of endeavor.
Outstanding Professors and Researchers: Here, the employer needs to sponsor the foreign national through its filing of an I-140 Immigrant Visa Petition to USCIS. The standard is to show that the foreign national should be considered as an outstanding academic figure or researcher. The regulations provide certain identifiable criteria that provide benchmarks for making this determination on the outstanding capabilities of the foreign national. In general, this classification, although rigorous, contains more relaxed standards, as is the case for the above-addressed classification of “aliens of extraordinary ability.”
- Qualifying Multinational Managers And Executives: Certain multinational corporations have an expedited, streamlined approach for qualifying key managerial and executive personnel for permanent residence. The key requirements are to show that the foreign national has worked abroad within the petitioning company’s operations and that the foreign national will continue to provide executive or managerial services while working for the same company in the United States. While originally created to cover the immigration needs for large U.S. multinational companies, this particular immigration strategy has proven to be extremely useful to a broad range of other business concerns that maintain various forms of international business activities.
- National Interest Waiver: This classification is actually a subset of the Second Employment-Based Preference classification, and has been established for foreign nationals whose prospective services will substantially benefit the United States. There are two general forms of National Interest Waiver cases: 1) for foreign nationals whose prospective services will substantially benefit broad U.S. national interest; and 2) for physicians who agree to work for a five-year period of time in designated medically underserved areas. This latter situation reflects upon a congressional determination that there is a crisis arising from the shortage of physicians in designated medically underserved areas, thereby justifying an expedited filing strategy for this particular class of either primary care or specialty care physicians. In the former instance, the foreign national needs to individually establish that he/she will benefit the United States by showing the following:1) that the benefits of the alien’s services are national in scope; 2) that the alien is engaged in “intrinsically meritorious” services; and 3) that the foreign national possesses outstanding ability so as to be able to make a national impact and to counter waive the general labor protection mechanisms that are embedded in the Labor Certification Application process.
- Special Situations for Professional Nurses and Physical Therapists: The U.S. Department of Labor has pre-certified a national shortage of professional nurses and physical therapists. Accordingly, an employer can skip over an individual test of the labor market and instead file an Immigrant Visa Petition directly to USCIS. Unfortunately, though, immigration laws contain very rigorous credentialing requirements for nurses in the form of the VisaScreen Certification Process, which creates an extensive and time-consuming review process to ensure that a foreign nurse possesses a professional skill set commensurate with his/her domestic counterparts.
- Religious Workers. A non-profit, religious organization can directly petition for permanent residence for a foreign national fully qualified to take up a religious occupation. This classification reflects upon a public policy determination on the desirability of promoting the religious life in this country. There are, though, significant areas of uncertainty regarding Religious Worker Petitions filed by “non-traditional” religious organizations and foreign nationals working hybrid jobs involving both secular and religious responsibilities.
- Immigrant Investors: Whereas many other countries encourage the immigration of foreign investors, U.S. immigration laws are quite ambivalent in this area. It is almost as though as our egalitarian, populist traditions revolt against the notion that a foreign national should be able to buy his/way into this country. As a consequence, our immigration laws, almost grudgingly, create a balanced, nuanced approach to investment-based immigration consisting of the following elements: 1) there needs to be a substantial investment, generally amounting to at least one million dollars, although decreased amounts are sufficient in designated high-unemployment regions; 2) the investment needs to create jobs for U.S. workers, thereby injecting a job-creation element into investment immigration cases; and 3) the foreign investor needs to demonstrate an ability to “manage and direct” the investment.