B
O
C
The most common way of securing legal permanent residency
through employment is by filing a labor certification application.
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 is lengthy. In situations
where timing is key and the alien's nonimmigrant status will soon
expire, then the employer and the alien should seriously consider
filing a special type of immigrant visa petition that circumvents the
labor certification process.
It is important to emphasize 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.
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.
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.
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 § 101(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.
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; 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. A visa number must be current for the
alien to apply for legal permanent residency. In the recent past,
the visa numbers were not current for Indian and Chinese
nationals and such aliens had to wait until the numbers became
available to apply for legal permanent residency. 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 to aliens from India and China.
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 may self-petition or be sponsored by an employer.
through employment is by filing a labor certification application.
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 is lengthy. In situations
where timing is key and the alien's nonimmigrant status will soon
expire, then the employer and the alien should seriously consider
filing a special type of immigrant visa petition that circumvents the
labor certification process.
It is important to emphasize 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.
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.
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 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 § 101(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.
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; 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. A visa number must be current for the
alien to apply for legal permanent residency. In the recent past,
the visa numbers were not current for Indian and Chinese
nationals and such aliens had to wait until the numbers became
available to apply for legal permanent residency. 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 to aliens from India and China.
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.
BOGLE
OKOYE
CHANG
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BOGLE & WHITE, LLC
Copyright © 2010 Bogle & White, LLC. All Rights Reserved.
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Employment Based Immigration
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