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There are two basic avenues available for individuals who wish to become legal permanent residents ("green card" holders) in the U.S: employment-based or family-based permanent residence cases. Taylor & Ryan works with employers seeking to sponsor employees for permanent residence based on labor certification as well as individuals whose own achievements permit them to file a “self-sponsored” petition. Finally, we work with U.S. citizens and legal permanent residents to sponsor qualifying relatives.
In order to sponsor an employee for a green card through Labor Certification, the employer must conduct and document a recruitment effort under specific guidelines prescribed by the U.S. Department of Labor (DOL) in order to demonstrate to the satisfaction of the DOL that there are no qualified U.S. workers available and willing to work in the job offered.
The process of obtaining the labor certification is complex and requires the employer to follow DOL rules very closely. We have a great deal of experience in guiding employers through this process.
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You may qualify for an expedited path to U.S. permanent resident (“green card”) status by demonstrating extraordinary abilities and achievements within your field of expertise. There are several classifications of immigrant petitions for exceptional workers, all of which allow the beneficiary to obtain permanent resident status without the lengthy delays involved in the labor certification process administered by the U.S. DOL. The attorneys of Taylor & Ryan have an established track record of successfully guiding hundreds of exceptional foreign nationals working in a wide range of fields through the process of planning and preparing petitions in the following categories:
The Extraordinary Ability classification is available to a small segment of professionals, artists and athletes who can demonstrate they are working at the very top of their field of endeavor. The Extraordinary Ability classification is reserved for individuals who have received a major, internationally recognized award such as a Nobel Prize, or who can demonstrate a comparable level of achievement. Foreign nationals may sponsor themselves in an Extraordinary Ability petition, or an employer may file a petition on their behalf. Obviously, not everyone will qualify for classification as an “individual of extraordinary ability”. Nevertheless, a well-crafted petition may establish that within your field, you are extraordinary!
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Universities and research institutions who wish to sponsor a Researcher or Professor for permanent residence may file a petition to qualify an individual as an Outstanding Researcher or Professor. To qualify for status as an Outstanding Researcher or Professor, an individual must work in a permanent, tenured, or tenure track position at an academic institution or a private employer with at least three full-time researchers. They must have at least three years of experience in teaching and/or research in the field, and must be able to demonstrate that their outstanding work in the field has received international recognition.
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U.S. Citizenship and Immigration Services will waive the requirement of a labor certification for foreign nationals who hold advanced degrees (M.S., Ph.D., J.D., M.B.A., M.A.) or who can demonstrate exceptional ability in the sciences or business if they can demonstrate that such a waiver would be in the national interest of the United States. Foreign nationals may sponsor themselves in a National Interest Waiver petition, or an employer may file a petition on their behalf. Key to the success of this type of petition is evidence of “substantial impact” on the field of expertise.
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Certain executives and high-level managers employed by multi-national corporations may be able to obtain U.S. permanent residency based on their transfer from a foreign company to a U.S. affiliate.
The foreign national must be employed or be seeking employment in the U.S. as an executive or manager with the same company (or a parent, subsidiary or affiliate) that employed him outside the U.S. as an executive or manager for at least one year during the past three years (or for at least one year during the three years prior to entry if already in the U.S.). This category corresponds to the L-1 temporary visa category, except that “specialized knowledge” workers are not included, and the sponsoring company must show that it has been doing business in the U.S. for at least one year before commencing the application.
Because the DOL has recognized that staffing for certain professions is particularly difficult, it established “Schedule A” which lists two professions that are hard to fill, i.e., Registered Nurses and Physical Therapists. Under Schedule A, employers seeking to fill positions for Registered Nurses or Physical Therapists, must prepare the labor certification form, but they are not required to test the labor market and prove that there are no U.S. workers qualified and available to fill the position. The labor certification form is submitted with the paperwork for the Immigrant Visa Petition.
Unlike regular Labor Certification process for professional workers described above, colleges and universities may sponsor a college-level teacher for permanent residence even if other qualified U.S. workers apply for the position as long as it has been established through a competitive recruitment that the foreign national is more qualified than the U.S. applicants. It is vital that the competitive recruitment was conducted on a national level and included at least one print ad. Assuming the criteria for the competitive recruitment is met, the employer files an application to through the DOL’s PERM program to obtain the labor certification.
The USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. The basic amount required to be invested is $1 million, although that amount may be $500,000 if the investment is made in a "targeted employment area." Under a pilot immigration program first enacted in 1992, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. There are approximately 10,000 visas available each year under the EB-5 category, 3000 of which are set aside for entrepreneurs who invest in a targeted area. Another 3,000 visas are set aside for entrepreneurs who make an investment in a regional center pilot program. The investment is required to create full-time employment for at least 10 U.S. workers - either directly or indirectly as a result of the investment. When the USCIS approved the investor's EB-5 petition, the investor becomes a conditional legal permanent resident for 2 years. The investor may apply to have the conditions lifted at the end of the two year period, basically by showing that the investment has been maintained the conditions of the program have been substantially met, e.g. employment creation. The requirements for the EB-5 visa are complex, but the basics are summarized below.
All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise that was established after Nov. 29, 1990, or one that was established on or before Nov. 29, 1990, that is: 1.) Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or 2.) Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs. Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business. The enterprise may be organized in a variety of entities including, but not limited to: a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust or other entity, which may be publicly or privately owned. Also permitted is a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident. The investment must be shown to create or preserve either direct or indirect jobs. The indirect job calucation applies only in cases where the investment has been made with a regional center. Investors may only be credited with preserving jobs in a troubled business.
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act. This means that every investor must be able to trace the source of the funds and provide evidence to the USCIS that the capital was derived by lawful means. Capital does not include loans by the entrepreneur or other parties. Generally, the minimum qualifying investment in the United States is $1 million. The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000. A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate. A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
U.S. citizens and legal permanent residents are eligible to sponsor family members for permanent residence in the U.S. U.S. Citizens may also file for fiance/fiancees to come to the U.S. to marry.
Spouses, children under 21 and parents of U.S. citizens are considered to be immediate relatives and thus can immigrate to the U.S. without regard to visa availability. Unmarried adult children are subject to visa availability as are married sons, daughters and siblings. It can take many years for a visa to become available in these categories.
The relatives of legal permanent residents (green card holders) may also seek to sponsor family members including spouses, unmarried children and unmarried adult sons and daughters. Again, the wait for visas can be very long.
