Law Offices Of Hilla R. Nattiv | Immigration and Naturalization Law

Permanent Residence

There are several means of obtaining an immigrant visa- U.S. permanent residence (or "green card" status).


	PERM Labor Certification
	Extraordinary Ability Aliens
	Outstanding Researchers/Professors
	Multinational Managers/Executives
	National Interest Waivers
	Religious Workers
	Family Based Immigration

Employment Based Permanent Residence

PERM Labor Certification
The most common employment-based method is through a labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. Under PERM labor certification, the Department of Labor (hereinafter referred to as the “DOL”) is responsible for the review and adjudication of labor certification applications. The labor certification application will be submitted electronically to a national DOL processing center. The date of submission of the online form will serve as the priority date for the entire permanent residency process (i.e., one's place in the green card queue).

The DOL reviews the labor certification application and may perform an audit of the application and request that documentation of the application be submitted. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications are then returned for signatures before the certified application can be used in the second stage of the process.

Form I-140: Immigrant Visa Petition
Upon certification of the labor certification, the petitioning company can move to the second stage of the permanent residence process with the U.S. Citizenship & Immigration Service. This bbstep involves preparation and filing of Form I-140, the Immigrant Visa Petition. We will prepare the I-140 and supporting documentation for the petitioning company. The U.S. Citizenship & Immigration Service will then adjudicate the I-140 petition.

Form I-485: Application for Adjustment of Status to Permanent Residence
The above referenced Form I-140 petition provides the basis for the employee's Form I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her I-485 application concurrently, along with the I-140 so long as his/her priority date is current. Priority dates are the queuing system for cases under an immigrant quota. If these priority dates are not current, the employee must wait for his/her priority date to become current to submit their AOS applications. The Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html. With the approval of the AOS application, the employee and his/her dependents become U.S. permanent residents and green cards are generally issued to them through the mail.

Alternatives to PERM Labor Certification
Several groups of immigrant visa applicants may be eligible to bypass the labor certification process with the Department of Labor. These applicants file Form I-140 immigrant petition directly with U.S. Citizenship & Immigration Service. This group of applicants includes the following:


1.	Extraordinary Ability Immigrants;

2.	Outstanding Researchers/Professors;

3.	Multinational Managers/Executives; and

4.	National Interest Waivers.

Extraordinary Ability Immigrants
Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB1-1). An individual may qualify for permanent residence in this category if his/her extraordinary ability in the sciences, arts, education, business, or athletics has been demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the United States to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the United States.

An individual may therefore self-petition under this category. A job offer is not required for this petition. However, the applicant must demonstrate that he/she will continue to work in his/her field of extraordinary ability.

The Immigration Service defines "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," as proven by "sustained national or international acclaim" and that one's achievements have been recognized in the field of expertise.

An applicant may qualify for this category by demonstrating a one-time achievement such as a Nobel Prize or Academy Award. Alternatively, an applicant may demonstrate extraordinary ability qualification on the basis of evidence demonstrating his/her extraordinary ability. The Immigration Service considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category (meet must at least three of the ten criteria):


	Documentation of the 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 in professional or other major trade publications or major media, relating to the one's work in the field;

	Evidence of one's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;

	Evidence of one's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

	Evidence of one's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

	Evidence of the display of one's work in the field at artistic exhibitions or showcases;

	Evidence that one has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

	Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

	Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales; or

If the above criteria do not readily apply to the applicant, regulations allow the applicant to submit comparable evidence to establish his/her eligibility for the category. In addition to meeting three of the above ten criteria, the applicant must prove that he/she has sustained international or national acclaim in his/her field of extraordinary ability.

Outstanding Professors and Researchers
The outstanding professor and researcher category is also a first preference employment-based immigrant visa category (EB1-2). An outstanding researcher or professor is defined as an individual who is recognized internationally as outstanding in his/her specific academic area of teaching and/or research. An individual may not self-petition under this category. The immigrant visa petition, (Form I-140), must be filed by a qualified U.S. employer.

Moreover, the individual must possess at least three years of experience teaching or in research in the academic area. In addition, he/she must have a job offer for the following:


1.	A tenured or tenured-track position within a university or institution of higher education to teach in the academic area;

2.	A comparable position with a university or institution of higher education to conduct research in the area; or

3.	A comparable position to conduct research for a private employer. The private employer must evidence documented research accomplishments and employ at least three full time researchers.

In addition to the above, the following types of evidence are considered in evaluating whether an individual qualifies as an outstanding professor or researcher:


	Documentation of the beneficiary's major prizes or awards for outstanding achievement in the academic field;

	Documentation of the beneficiary's membership in associations in the academic field which require outstanding achievements;

	Published material in professional publications written by others about the beneficiary's work in the academic field;

	Evidence of the beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

	Evidence of the beneficiary's original scientific or scholarly research contributions to the academic field; or

	Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

In addition to meeting two of the above referenced criteria, the applicant must prove international recognition in his/her academic area.

Multinational Executives and Managers
Managers or executives of multinational companies are eligible for permanent residence under a first preference employment based immigrant category, EB1-3. Generally, managerial and executive candidates enter the U.S. in L-1A or E status and apply for permanent residence at a later point.

This category applies to intracompany transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial or executive capacity. As with the L-1A, this petition requires clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office.

There are two types of managers recognized by the Immigration Service to qualify under this immigrant visa category. The first type is a manager who directly manages people; these managers have professional or managerial employees who report directly to them. The second type of recognized manager is he/she who manages an essential function within the entity. These managers must be at a senior level with respect to the function managed, must have substantial discretionary, day-to-day authority over the function managed, and must be primarily engaged in managerial duties.

National Interest Waiver Immigrants
A person whose immigration to the United States will prove in the national interest of the United States may also bypass the labor certification process. These petitions fall under the second preference employment-based immigrant visa category- available to individuals with advanced degrees or to individuals who possess exceptional ability in the sciences, arts or business. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered. It may be demonstrated by meeting at least three of six requirements set forth by the Immigration Service. No job offer is required for the national interest waiver category.

The Immigration Service has set forth a number of areas it believes to be in the U.S. national interest. These areas include the following:


	Improving the U.S. economy;

	Improving wages and working conditions in the U.S. economy;

	Improving education for U.S. children and under-qualified workers;

	Improving health care;

	Providing more affordable housing;

	Improving the environment; or

	Instances wherein an interested government agency supports the request.

It should be noted that the above is not an all-inclusive list and it is possible to establish one's admission as being in the national interest in other ways, including, in the development of critical technologies.

The INS recently issued a precedent decision that defines this category more clearly. To immigrate under this category, one must prove his or her work: A) Is in an area of substantial intrinsic merit; B) Provides a benefit that is national in scope; and C) Serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.

Critical elements in establishing national interest may also be met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field.

Preparation and Filing of Form I-140 and Form I-485

Preparation of the I-140 petition for extraordinary ability, outstanding professors and researchers, and national interest waiver cases, is a complex and methodical process. The above referenced Form I-140 petition provides the basis for the employee's Form I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her Form I-485 application concurrently, along with the I-140 so long as his/her priority date is current. Priority dates are the queuing system for cases under an immigrant quota. If these priority dates are not current, the employee must wait for his/her priority date to become current to submit their AOS applications. The Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html. With the approval of the AOS application, the employee and his/her dependents become U.S. permanent residents and green cards are generally issued to them through the mail.

Religious Workers

The EB-4 classification is an immigrant visa category, which allows foreign nationals who are members of religious denominations to enter into the U.S. to obtain permanent residency. To qualify for this visa category the individual must demonstrate that he/she has been a member of a legitimate religious denomination for at least 2 years. Moreover, the applicant must be a member of a religious denomination that has a bona fide nonprofit, religious organization in the United States. These special immigrants may enter to the United States to work in one of the following capacities:


	Ministers of Religion - Persons who enter the U.S. only to work as a minister of the religious denomination he/she has belonged to for the past two years. The minister must be authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion.

	Religious Professionals - Persons who enter the U.S. to work for a bona fide non-profit organization in a professional religious vocation or professional occupation at the request of the organization. A professional religious vocation or occupation requires a U.S. baccalaureate degree or foreign equivalent.

	Other Religious Workers - Persons who enter the U.S. to work for a bona fide non-profit organization in a religious vocation/occupation at the request of the organization. This religious vocation or occupation does not require a baccalaureate degree or foreign equivalent. These workers can be individuals who do not qualify as ministers of religion or religious professionals

The U.S. religious non-profit organization must meet two requirements. First, the entity must have a religious community with a form of worship, a code of doctrine and discipline, religious ceremonies, established places of worship, and religious congregations, or other evidence of a religious denomination.. Secondly, it must be exempt from U.S. taxation as described in Section 501(c)(3) of the Internal Revenue Code of 1986, or satisfy USCIS that it would be eligible for the tax-exempt status.

Religious workers do not file the Form I-140 described above. Instead, their employer will file Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant with the appropriate Immigration Service Center. Upon approval of the Form I-360, these individuals can then proceed with filing of the Form I-485, Adjustment of Status.

Family Based Immigration

There are five categories of immigrant visas that allow relatives of United States citizens and U.S. permanent residents to become U.S. permanent residents. Congress has limited the number of people, by country, who can immigrate each year, for many categories and nationalities. As such, for other than immediate relatives of U.S. citizens, there is a waiting list for the immigrant visa. For the current visa bulletin, please follow this link:
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The following are the five family based immigrant visa categories:


	Immediate Relatives of U.S. Citizens - Spouses, Parents (where U.S. citizen child is 21 years of age or older) and Unmarried Children Under Age 21.

	First Preference - Unmarried Sons and Daughters (21 years of age or older) of U.S. citizens.

	Second Preference - Spouses and Unmarried Sons, Daughters, and Children of U.S. Lawful Permanent Residents. There is a significant wait for an immigrant visa in this category. Spouses and unmarried children (under the age of 21) of lawful permanent residents face a shorter wait than unmarried sons and daughters (21 years old or older) of U.S. Lawful Permanent Residents.

	Third Preference - Married Sons and Daughters (age 21 or older) of U.S. citizens. There is a significant wait list for a visa in this category.

	Fourth Preference - Brothers and Sisters of U.S. Citizens (U.S. citizen must be age 21 or older). There is a significant wait list for a visa in this category.

There are generally two stages involved in obtaining permanent residency through a family member. The first step is for the U.S. citizen or permanent resident to file Form I-130 and evidence demonstrating a valid familial relationship with the appropriate service center in the United States. Once approved, and a visa becomes available, the applicant can proceed with the greencard application either in the United States through Adjustment of Status (Form I-485) or directly through a U.S. Consular office abroad. Immediate relatives of U.S. citizens can file these two steps concurrently if they are in the United States.

Citizenship

U.S. Citizenship can be obtained by either birth or naturalization. There are benefits to becoming a U.S. citizen. Such benefits include, but are not limited to, federal job benefits, higher estate tax exemptions, most importantly, the right to vote. In addition there are federal grants and scholarships, which are only available to U.S. citizens.

Naturalization is the process whereby U.S. citizenship is conferred upon a foreign citizen or other national after he/she fulfills requirements established by Congress in the Immigration and Nationality Act (INA). The following is an overview of the general requirements for administrative naturalization include:


	Period of continuous residence and physical presence in the United States;

	Ability to read, write, and speak English;

	Knowledge and understanding of U.S. history and government;

	Good moral character;

	Attachment to the principles of the U.S. Constitution; and,

	Favorable disposition toward the United States.

The U.S. Citizenship and Immigration Service website provides a detailed Guide to Naturalization. Please use this link to determine your eligibility for naturalization. http://uscis.gov/graphics/services/natz/guide.htm.