Permanent Residence through Employment

Description

Those foreign nationals wishing to establish lawful permanent residence, but do not have relatives in the United States may do so on the basis of employment opportunity. The following are categories in which residence visas are granted based upon occupation.

First Preference Priority Workers

Aliens with extraordinary ability, outstanding professors and researchers, and executives and managers of multinational companies are classified as “Priority Workers.”

Aliens with Extraordinary Ability are defined as:

• The alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, and
• The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
• The alien’s entry into the United States will substantially benefit prospectively the United States.

Outstanding Professors and Researchers are defined as:

• The alien is recognized internationally as outstanding in a specific academic area,
• The alien has at least 3 years of experience in teaching or research in the academic area, and
• The alien seeks to enter the United States for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area, or for a comparable position with a university or institution of higher education to conduct research in the area, or for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

Intracompany Transferee Executives and Managers are defined as:

• An alien who in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

No labor certification is required for any qualified applicant in the First Preference, Priority Worker classification.

Second Preference Aliens of Extraordinary Ability

Professionals with advanced degrees or those persons with exceptional ability in the sciences, arts, or business are classified as aliens of extraordinary ability.. An offer of employment and a labor certification are required.

Third Preference Skilled & Other Workers

Professionals with bachelor degrees and skilled workers. Those workers with positions requiring less than two years specific vocational preparation are classified “Other Workers” and are generally subject to longer quota waiting periods.

Fourth Preference Special Immigrants

Special Immigrants include ministers of religion and other religious workers, certain employees or retired employees of the U.S. government who have served abroad, certain employees under the Panama Canal Act of 1979, certain foreign medical graduates who entered the United States in H or J status before January 10, 1978, certain officers and employees of international organizations who resided in the United States for requisite periods, and defined widows and widowers, and unmarried sons or daughters of such officers and employees, certain persons declared dependent on a U.S. juvenile court or placed in state custody, and certain immigrants who have served in the U.S. armed forces.

Fifth Preference Employment Creation (Investors)

Investors who invest $1,000,000.00 into an active U.S. business enterprise which in turn employs at least 10 United States workers. The investment and employment must continue for two years. In designated areas of high unemployment, investments of $500,000.00 may qualify.

The employment creation investor is granted for initial term of conditional residency for two years and thereafter a new petition is required in order to demonstrate that the investor has invested the entire required amount, has maintained the investment, and has employed at least 10 people on a full time basis. When the conditional status is satisfied, the investor may be granted lawful permanent residence.

For a private consultation, contact Haynes Immigration Law, P.C. Call 210-222-VISA (8472) or email Jon M. Haynes directly at: .

LABOR CERTIFICATION

For those foreign nationals who do not have relatives in the US, obtaining permanent residence by labor certification remains the primary method of immigration.

Labor certification is a prerequisite for filing for lawful permanent residence under most employment sponsorship (other than priority workers).
Workers who obtain labor certification are deemed to be in short supply and are granted lawful permanent residence for the purpose of accepting employment. Certain professionals are not required to obtain a labor certification in order to immigrate:

• Registered Physical Therapists
• Registered Nurses
• Aliens of Extraordinary Ability
• Outstanding Professors and Researchers
• Intracompany Transferee Executives and Managers
• Religious professionals
• Intra-company Transferees (Executives and Managers)
• Outstanding Professors and Researchers

The Department of Labor also promulgates a list of occupations for which it has determined that no shortage exists. This list is designated “Schedule B” and consists of the following:

SCHEDULE B

Jobs For Which No Shortage Currently Exists

• Assemblers
• Attendants, Parking Lot
• Attendants
• Automobile Service Station Attendants
• Bartenders
• Bookkeepers II
• Caretakers
• Cashiers
• Charworkers and Cleaners
• Chauffeurs and Taxicab Drivers
• Cleaners, Hotel and Motel
• Clerks, General
• Clerks, Hotel
• Clerks and Checkers, Grocery Stores
• Clerk Typists
• Cooks, Short Order
• Counter and Fountain Workers
• Dining Room Attendants
• Electric Truck Operators
• Elevator Operators
• Floorworkers
• Groundskeepers
• Guards
• Helpers, any industry
• Hotel Cleaners
• Household Domestic Service Workers who lack one year of documented paid experience in the tasks to be performed (except workers providing primarily health or instructional service)
• Housekeepers
• Janitors
• Key Punch Operators
• Kitchen Workers
• Laborers, Common
• Laborers, Farm
• Laborers, Mine
• Loopers and Toppers
• Material Handlers
• Nurses’ Aides and Orderlies
• Packers, Markers, Bottlers, and Related
• Porters
• Receptionists
• Sailors and Deck Hands
• Sales Clerks, General
• Sewing Machine Operators and Handstitchers
• Stock Room and Warehouse Workers
• Streetcar and Bus Conductors
• Telephone Operators
• Truck Drivers and Tractor Drivers
• Typists, Lesser Skilled
• Ushers, Recreation and Amusement
• Yard Workers

The labor certification process tests the labor market to determine if there is a United States citizen or resident who is willing and qualified to accept the employment. The process is designed to protect American jobs while still making skilled foreign workers available for positions that cannot be filled with domestic workers.

This procedure is supervised and adjudicated by the United States Department of Labor. Some of the basic principles include:

• The job requirements must be reasonably related to the job and must not be tailored to the alien applicant.
• The alien applicant must possess the required education, training, and experience at the time the Application for Alien Labor Certification is filed.
• With few exceptions, the alien must have obtained the qualifying education, training and experience outside of the sponsor’s employment.
• Except in the case of business necessity, the job must not involve a combination of duties of two vocations.
• Except in the case of business necessity, the job must not require knowledge of a foreign language.
• Except in the case of business necessity, the job must not require knowledge or experience that cannot by its very nature be obtained in the United States.
• Except in the case of business necessity, the employer may not require more education, training, and/or experience than other employers for similar jobs.

Advantages

Duration

Lawful permanent residence is permanent in duration, unless abandoned by the resident alien failing to live in the United States or by commission of a qualifying crime.

Reside in U.S.

Permanent residents are allowed to reside in the United States, including any location within any of the fifty states.

Work in U.S.

Permanent residents are allowed to work and freely change employment.

Property Rights

Real estate, businesses, and investments may be purchased, owned, or sold by permanent residents.

Sponsor Relatives

Spouses and unmarried sons and daughters may be sponsored for lawful permanent residence under the second preference visa category.

U.S. Citizenship

After holding lawful permanent residence for five years, the permanent resident may file an application to become a citizen of the United States.

College Tuition Reduced

In many states, lawful permanent residents are considered “residents” for tuition purposes and may qualify for reduced “in state” tuition fees.

Homestead Exemption

In many states, lawful permanent residents are considered “residents” and allowed to claim exemptions on the taxation of their homestead property.

U.S. Taxation

A lawful permanent resident of the United States is considered a “resident” for purposes of United States income taxation. Depending upon the taxation laws of the resident’s home country, exiting tax treaties, and the resident’s own personal financial circumstance, lawful permanent residence may in some, though not all, circumstances result in lower net taxation.

Limitations

Processing Time

Current processing time for labor certification varies, depending upon the local, state, and regional office involved. Typically the labor certification process takes at least six to nine months before a decision is rendered.

However, the true time constraint is presented by the waiting time for the quota categories. For professional positions, this time can take from being “current” to eighteen months or longer, depending upon the applicant’s country of origin. Those non-professional workers can anticipate a wait of eighteen months or longer.

Viability of Employment Offer

In order to immigrate within the third or sixth preference, the foreign applicant must enter the U.S. for the purpose of assuming the employment for which the labor certification was issued. This may require the employer to hold open the job offer for a substantial time, depending upon the current waiting times in the visa categories.

Summary

Lawful permanent residence affords the highest level of advantages and the greatest flexibility for foreign nationals who seek to enter and remain in the United States.

For a private consultation, contact Haynes Immigration Law, P.C. Call 210-222-VISA (8472) or email Jon M. Haynes directly at: