Permanent Residence is intended for individuals who are working and living permanently in the United States. There are numerous methods by which an immigrant can obtain permanent residence, including through employer-based sponsorship, sponsorship by a U.S. citizen or permanent resident spouse or family member, through a grant of asylum, and through the Diversity Visa Lottery.
The Permanent Resident Card, commonly known as the "Green Card" (although it is no longer green), grants unrestricted authorization to reside and earn income in the U.S. (unless the residence is abandoned), and permits travel into and out of the U.S. with far less restraint than those that exist for nonimmigrant visas. Permanent residents have general employment authorization, permitting them to work with any U.S. employer.
In an employment-based context, individuals can apply for permanent residence through their employment in the United States, or based on prospective employment in the United States if they are not already living and working here, assuming their employer is willing to sponsor them for permanent residence. In order to obtain U.S. permanent residence, an individual must first be awarded an immigrant visa number. Eligibility for immigrant visa numbers is determined by the applicant's country of birth in conjunction with the method by which the application for permanent residence is being filed. For more information about immigrant visa availability, see Immigrant Visa Preference Category System. There are a number of methods by which to file for permanent residence through employment, depending upon the job offered and the qualifications of the individual:
Labor Certification (PERM)
Multinational Manager or Executive
National Interest Waiver
Permanent Residence through Labor Certification (PERM)
The most common method through which an employee can file for permanent residence is a labor certification filed by a U.S. employer based on an offer of permanent, full-time employment. A labor certification is based on the concept that there are no qualified U.S. workers who are willing, able, or available to perform a certain job and is intended to assure the Department of Labor (DOL) that the company has not offered a wage or working conditions to a foreign national that adversely affect the wages or working conditions of U.S. workers. An approved labor certification from DOL serves as the foundation for filing an employment-based petition for permanent residence on behalf of a foreign national with U.S. Citizenship & Immigration Services (CIS).
The job market must be tested through various forms of recruitment, and any U.S. worker who applies for the job and meets the stated minimum requirements is considered qualified (but may not be willing, able, or available). The employer cannot choose the "best-qualified applicant" in the PERM context.
A U.S. worker is defined as a U.S. citizen, permanent resident, or other individual who is allowed to work permanently in the U.S.
A prevailing wage determination for the position (including all requirements for the job) must be obtained from DOL's National Prevailing Wage & Helpdesk Center. The employer must agree to pay the employee at least the determined prevailing wage for the position at the time he or she is granted permanent residence.
The position must remain available to the applicant until he or she is awarded permanent residence.
PERM-based cases typically fall into the Employment-Based Second (EB-2) or Third (EB-3) Preference Category.
Immigration law also permits employers to file on behalf of individuals or for individuals to petition for themselves (without the need for an employer to file a labor certification) if they can show that their admission into the United States without a job offer is in the national interest.
The individual must satisfy the following three criteria:
The individual must seek employment in an "area of substantial intrinsic merit";
The proposed benefit of the work must be "national in scope"; and
The individual must demonstrate that the national interest would be adversely affected if a labor certification is required.
As illustration, CIS has in the past favorably considered evidence that the individual's admission will improve the national economy; wages and working conditions of U.S. workers; education and training programs for U.S. children and under-qualified workers; healthcare; provision of affordable housing; or the environment in the U.S. and make for more productive use of natural resources.
The individual must have at least the equivalent of a U.S. Master's degree (or a Bachelor's degree and five years of progressive experience in the relevant specialty), or be able to demonstrate exceptional ability in his/her field.
National Interest Waiver cases fall into the Employment-Based Second (EB-2) Preference Category.
Outstanding Researchers & Professors
Alternatively, immigration law permits employers to file visa petitions without first filing a labor certification on behalf of individuals who can establish that they are outstanding researchers or professors.
To qualify, these individuals must meet the following basic criteria:
Be internationally recognized as outstanding in a specific academic field;
Have a minimum of three years of experience in teaching and/or research in that field, which must typically be obtained subsequent to earning a doctorate-level degree (if an individual has less than three years of post-doctoral experience, experience gained while working towards the degree can only be used if the degree was awarded and if either the teaching duties were such that the individual had full responsibility for the class taught or the research conducted toward the degree has been recognized as outstanding); and
Enter the U.S. in a permanent teaching or comparable research position (permanent is defined as tenure, tenure-track, or for a term of indefinite or unlimited duration) at a university or other institution of higher learning.
If the petition is filed by a private employer, the employer must demonstrate that the department, division, or institute offering the individual a permanent research position already employs at least three full-time researchers and has achieved documented accomplishments in an academic field.
To be successful, it is necessary to provide evidence that satisfies at least two criteria set forth in the regulations (i.e., receipt of major prizes or awards; membership in associations that require outstanding achievements; published material about the alien; evidence that the alien is a judge of the work of others in the field; authorship of scholarly articles; and original scientific or scholarly research contributions). The evidence will nearly always include letters from experts and colleagues in the academic field attesting to the outstanding nature of the research or teaching ability of the foreign national.
Outstanding Researcher or Professor petitions fall into the Employment-Based First (EB-1) Preference Category.
Immigration law permits employers to file on behalf of individuals or for individuals to petition for themselves (without the need for an employer to file a labor certification) if they can show that they possess extraordinary ability in their area of expertise.
Aliens of extraordinary ability are defined by statute as those who can show that they have 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.
The regulations indicate that the individual's level of expertise must be such that he or she is one of the small percentage who have risen to the very top of his or her field of endeavor.
To be successful, it is necessary to either have received a major, internationally-recognized award (e.g. a Nobel Prize) or to provide alternative evidence that satisfies at least three criteria set forth in the regulations (e.g. receipt of nationally or internationally recognized prizes or awards for excellence; published material about the alien in professional or major trade publications or other major media; judging the work of others in the field; original contributions of major significance; authorship of scholarly articles; display of work in the field at artistic exhibitions and showcases; performance in a leading or critical role for organizations or establishments with a distinguished reputation; commanding a high salary or remuneration for services; commercial success).
Extraordinary Ability petitions fall into the Employment-Based First (EB-1) Preference Category.
Multinational Manager or Executive
Immigration law also permits employers to file visa petitions without first filing a labor certification on behalf of multinational executives or managers.
The multinational manager or executive beneficiary is eligible for priority worker status if he or she has been employed outside of the U.S. by a firm, corporation, or other legal entity, affiliate, or subsidiary in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition. In the case of a foreign worker presently in the U.S. in nonimmigrant status working for the same employer, affiliate, or subsidiary, the worker must have been employed by the company abroad for at least one of the three years preceding admission to the U.S. as a nonimmigrant.
The U.S. employer must be an affiliate, a subsidiary, or the same employer as the firm, corporation or legal entity that employed the foreign national abroad.
The qualifying international organization must be doing business in two or more countries, one of which is the United States. Doing business means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office.
The foreign national must be coming to the U.S. to continue to work in a managerial or executive capacity, as defined by the regulations.
Executive capacity is defined as requiring the direct management of the organization or a major component or function of the organization; authority to establish the goals and policies of the organization, component, or function; exercise of a wide latitude in discretionary decision-making; and receipt of general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. Managerial capacity is defined as requiring management of the organization, or a department, subdivision, function, or component of the organization; supervision and control over the work of other supervisory, professional, or managerial employees, or management of an essential function within the organization, or a department or subdivision of the organization; authority to hire and fire or recommend other personnel actions (such as promotion and leave authorization), or, if no direct supervisory responsibility, functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercise of direction over the day-to-day operations or function.
Multinational Manager or Executive petitions fall into the Employment-Based First (EB-1) Preference Category