1. Finding the Right Path Employment Based Routes to Permanent Residence
Kathleen Gasparian
Gasparian Immigration

2. WARNING WARNING WARNING
The information contained in this presentation is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel.

3. What is permanent residence?
Authorization to live and work permanently in the U.S. Authorization to enter U.S. with “green card” and passport (no visa necessary) A “green card” – valid for 10 years/renewable Ability to petition for certain family members Can apply for citizenship after meeting certain requirements Depending on the basis for residence may include spouse and children (unmarried under 21) in the application

4. How is permanent residence obtained?
Family
Asylees/Refugees and Special Programs
Visa Lottery
Investment
Employment 4

5. What can cause problems in pursuing permanent residence?
Certain criminal issues
Prior immigration difficulties or violations
Prior fraud
Terrorist associations or similar

6. Employment Based Immigration
Limited Number of “green cards” available every year. Divided according to preference category and country.
Usually based on a full-time permanent job offer and petition is filed by employer. There are some exceptions that allow self-petition.
Some petitions are filed by the one who wants LPR
And some petitions are filed on behalf of the one who wants LPR
Petition approval assigns FUTURE right to a “green card”
Approved petition alone provides no right to remain in the U.S. work, etc.
Immigrant visa/status or ”green card” is obtained by
Applying for adjustment of status to LPR in the U.S., or
Applying for the visa at U.S. consulate in home country
Must wait if queue/backlog for the country and category

7. Permanent Residence through Employment
Each year 140,000 places allocated among five categories, called “preferences” There are five preferences – this presentation will only look at the first three Process to permanent residence can be lengthy (years), not because the processing with the government is lengthy but because the demand for immigrant visas exceeds the supply. Usually, the higher in preference, the shorter the line.

8. The steps in the process
Labor Certification + Employer Petition + Adjustment of Status Priority date (place in the queue) assigned at filing of the labor certification If exempt from Labor Certification = Employer Petition + Adjustment of Status Priority date is assigned at filing of the employer petition Neither the labor certification nor employer petition provide a status, permission to be in the US, or authorization to work!

9. First Preference Category
Often termed “EB-1”
Within the first category, there are sub-divisions; we will discuss two of them.
Aliens with extraordinary ability (EB-1-1 or EB-1-A)
Outstanding professors and researchers (EB-1-2 or EB-1-B)

10. Extraordinary Ability (“EB-1-1”)
Individual who is one of that small percentage who have risen to the very top of the field of endeavor, as shown by sustained national of international acclaim and recognized achievements.
Does not require a labor certification or a specific job offer. In other words, can self-petition.
USCIS uses example of “Nobel Prize” or “Olympic Medal”.
Have to meet three of ten criteria with direct relation to the field of endeavor in which she seeks classification
For the sciences, arts, education, business or athletics.

11. Extraordinary Ability (“EB-1-1”)
Need 3 of the following:
Receipt of lesser prizes for excellence
Membership in associations that require outstanding achievements
Discussion of work appearing major trade publications or major media
Participation as a judge of other’s work
Original contributions of major significance
Authorship of scholarly articles
Display of work at exhibitions or showcases
Performance in a leading or critical role for organizations that have a distinguished reputation
Command of high salary
Commercial success in the performing arts

12. Outstanding Professor/Researcher (“EB-1-2”)
Professor or researcher who is recognized internationally as outstanding in the academic field, and who has at least 3 years of teaching or research experience in the field.
No labor certification required – but does require job offer
Job offer must be a permanent position
Tenure-track or tenured teaching position or comparable research position
At least three years of teaching or research experience in the field
If relying on experience as graduate student, which is not uncommon, it’s probably best to address directly the regulatory requirements that the beneficiary had full responsibility for the teaching or that the research has been recognized as outstanding (though USCIS rarely questions)

13. Outstanding Professor/Researcher (“EB-1-2”)
Recognized internationally as outstanding with evidence of at least two of the following:
receipt of major prizes or awards for outstanding achievement
membership in organization that requires outstanding achievement
published material about the alien’s work
participation, individually or on a panel, judging the work of others
original scientific or scholarly contributions to the field
authorship of scholarly books or articles

14. Post- Kazarian
amended procedures in the adjudication of all Form I-140 petitions filed for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, and for Alien of Exceptional Ability
Now use a two-part analysis to evaluate the evidence submitted with the petition to demonstrate eligibility.
First, USCIS officers should evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, if the regulatory criteria is met, i.e. receipt of a prize or meets 3 of 8 criteria or 2 of 6 criteria.
Second, USCIS officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.
Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010) – review of AAO decision

15. Choosing EB-1 Never a backlog Bypass labor certification process
No need for advertising or search committee from immigration point of view
Can be good option for professor if “special handling” criteria not met
No issues, from immigration standpoint of who pays for what
For extremely focused scholar, can be quickly prepared and filed in case of emergency to protect work authorization (file petition concurrently with AOS application)
Extensive documentation required
Subjective and “un-scientific” process
Difficult to predict chances of success accurately (hard to know minimum evidence unless you have many denials)

16. Second Preference Category
Often termed “EB-2”
Open to professionals with advanced degrees and aliens of exceptional ability
Within the first category, there are sub-divisions, we will discuss two of them
National Interest Waiver (NIW or NIJOW)
Labor Certification
Special Handling
Standard Recruitment

17. National Interest Waiver
Waives the requirement of a job offer and labor certification.
Can self file or have employer file.
Matter of NYSDOT sets difficult eligibility criteria – the three prong test
The employment must be in an area of “substantial intrinsic merit”
The benefit of the employment must be national in scope; and
The national interest would be adversely affected if labor certification were required
Have to have an advanced degree.

18. National Interest Waiver
In many ways looking for similar evidence as in the EB-1-2 category: publications, presentations, expert letters, etc.
CIS loves citations or similar evidence
Need to educate CIS about your field and what is a meaningful accomplishment in your field
The national interest would be adversely affected if labor certification were required
This is the Hardest Part of Proving a National Interest Waiver!!!!
How are you better/ different from others in your field? What sets you apart?
What have you done that has had impact on your field? What is the impact?
Who uses your work and how?
Have others relied on your work?

19. Choosing NIW
Ability to self-petition Anyone can pay for it May be difficult for liberal arts or softer sciences or professions like law Requires lots of documentation and can require a lot of effort to put together a winning case

20. Third Preference Category
Often termed “EB-3” Open to all positions – variations if professional or nor Always have Labor Certification

21. Labor Certification Required for EB-3 petitions
Required for non-NIW EB-2 petitions
Highly regulated and regimented “test” of the labor market.
Professional: for those positions for which a bachelor’s or higher is normal; six sources of recruitment
“Special handling”: one print ad, posting; “best qualified” standard.

22. Labor Certification EB-2 that does not have teaching duties
master’s or bachelor’s and five years
Eb-3 that requires a bachelor’s
Overview
Obtain prevailing wage determination
Conduct proper recruitment and prepare “recruitment report”
Post notice for 10 business days and publish in usual in-house media
Wait 30 days (but not more than 180 days) and file ETA-9089 online
DOL may approve, audit, or deny
If approval, employer may file I-140 for employee
Employer required to pay for the Labor Certification – including lawyer fees and advertising costs by regulation

23. “Special Handling” Labor Certification
Available for university teaching positions - teaching need not be full time, may consist of various forms of “instruction”
Employer need only show that it hired the “best qualified applicant”
Advertising requirements are minimal – one print ad or 30 days online ad in a national professional journal and in –house posting
Must be paid “prevailing” wage
File the application “within 18 months after a selection is made” (usually offer letter)
If recruitment does not meet DOL requirements (no print ad) or 18-month window missed, may re-recruit and re-select
Alien must meet the minimum requirements at time of selection.
Must do a recruitment report
Title or Title (e.g. Assistant Professor).
Duties—should include or at least imply teaching or instruction.
Requirements and “Preferreds”: Candidate must meet all requirements and preferred qualifications at time of selection, not start date, unless specified in ad.

24. The steps in the process
Labor Certification + Employer Petition + Adjustment of Status Priority date (place in the queue) assigned at filing of the labor certification If exempt from Labor Certification = Employer Petition + Adjustment of Status Priority date is assigned at filing of the employer petition Neither the labor certification nor employer petition provide a status, permission to be in the US, or authorization to work!

25. Finalizing Permanent Residencence
Can process in US or abroad at a US embassy
In general, if in US in valid status, it is far easier/cheaper faster to do it here via I-485 application to adjust status.
Must have current “priority date” to file adjustment of status
***recent changes to visa bulletin now have filing date vs adjudication date
May file after immigrant petition (I-140) approved or “concurrently” with petition
if priority date is current
Depending on country, category, and demand for “green cards,” the wait can be a long one
Dependents (spouse, unmarried children under 21), called “derivatives,” may apply for adjustment with “principal”
Adjustment applicants get travel document and work card
Filing adjustment application (not petition or labor cert.) gives person the right to remain in the U.S. to wait for “green card”

26. Considering AOS Last step in LPR process
A request that USCIS “adjust” applicant’s status to LPR (alternative to “consular processing” an immigrant visa)
Must have current “priority date” to file adjustment of status
Priority date established by filing of first step in LPR process
May file after immigrant petition approved or “concurrently” with petition
Depending on country, category, and demand for “green cards,” the wait can be a long one
Dependents (spouse, unmarried children under 21), called “derivatives,” may apply for AOS with “principal”
Adjustment applicants get travel document and work card
Filing adjustment application (not petition or labor cert.) gives person the right to remain in the U.S. to wait for “green card”

27. Benefits of Each Step Approval of labor certification application
Allows employer to file I-140 immigrant petition
Provides no work authorization or right to remain in U.S.
Establishes beneficiary’s place in immigrant visa queue
If LC filed before 5th year of H-1B ends, indefinite extensions of H-1B
Approval of I-140 immigrant petition
Establishes beneficiary’s right to apply for AOS or immigrant visa, eventually (per Visa Bulletin)
If first step, establishes beneficiary’s place in immigrant visa queue
If approved, but beneficiary can’t file AOS because of immigrant visa backlog, indefinite extensions of H-1B
Filing I-485 adjustment of status application
Considered authorized stay in the US
UAll applicants can file for travel and work documents

28. How long will it take?
It depends on the route It depends on agency actions It depends on “administrative processing” It depends on the visa bulletin/ country of chargeability / backlog

29. Changes to the Visa Bulletin
In September DOS made big changes to the Visa Bulletin
Seemed to be a coordinated effort with USCIS
Both agencies had publication/information
The October bulletin was the first of the “new” process
Each category has two different charts of dates
One chart is the same as before and termed “Date for Final Action”
The second chart has earlier dates and is called the “Dates for Filing Applications”
As originally published, the October bulletin had some crazy dates for “Dates for Filing”.
So, a revised October bulletin was issued before October 1 with much later dates
Kerfuffle, Lawsuit, Mayhem
October 14, 2015 – USCIS states
Beginning with the November 2015 Department of State (DOS) Visa Bulletin, if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on  applicants may use the Dates for Filing Visa Applications chart.  Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications.
And we will do it within one week of DOS putting out the visa bulletin

32. Dealing with the backlog
Explore options for cross-chargeability
Explore using a priority date from a previous petition
Strategize for a first preference petition
Be aware of children who might “age out”
Maintain non-immigrant status
File as early as possible
File timely to ensure ability to extend H-1B past 6th year

33. H-1B extensions
May recapture time spent outside of U.S. while approved for H-1B (no longer have to show “meaningful interruption”)
Post-6-year “extensions”
One year extensions, indefinitely, if more than 365 days have passed since filing of ETA-9089/ETA-750 or I-140
Can be pending or approved, and H-1B employer doesn’t have to be LPR employer
If LC expires before I-140 filed, LC cannot serve as basis for extension
Denied or revoked LC or petition cannot serve as basis for extension
Unless there was a timely-filed “appeal” to DOL/BALCA or AAO
Three-year extensions, indefinitely, if I-140 approved and priority date is not current
Premium processing of I-140 can be useful

34. H4 work authorization
H-4 spouse can obtain work authorization if the H-1B principal spouse
has an approved I-140 petition or
is in H-1B status based on a provision of AC 21(in other words, is past the sixth year of H-1B status).

35. Finding the Right Path Employment Based Routes to Permanent Residence
Kathleen Gasparian
Gasparian Immigration