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Green Card
PERMANENT RESIDENCE
aka "GREEN CARD"
There are several bases for becoming eligible to immigrate to the United Sates and to be admitted to permanent residence. The proof of this status is the famous "Green Card," which, incidentally, is no longer green. However, recently, there have been statutory and regulatory changes proposed in Congress that will substantially alter or eliminate some of these options. Clearly, if one is contemplating filing for one of the following options, it is better to file under the existing law and regulations.
The following information relates to employment as the basis upon which to seek eligibility for an immigrant visa. In this regard there are two major alternatives.
- One is to petition the U. S. Immigration and Naturalization Service (INS) directly to classify an individual in one of two immigrant visa preference categories.
- The other is to first apply to the U.S. Department of Labor (DOL) to establish a shortage of U.S. workers, and then petition the INS.
Click here
for a quick-to-grasp chart of the two paths towards a green card through employment. You can get more information on the following topics by clicking on the links below.
PETITIONING THE INS DIRECTLY
FIRST VISA PREFERENCE CATEGORY
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PERSONS WITH EXTRAORDINARY ABILITY
In petitioning the INS directly, the first immigrant visa preference category has three sub-categories to consider. The initial one is for individuals with "extraordinary ability," which is defined as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." The key issue here is defining the field of endeavor-if narrowly drawn, proving this level of expertise is less difficult. Although, in the end, the totality of the evidence presented is examined to reach a determination as to whether the individual has extraordinary ability, the INS regulations provide a list of initial evidence that may be submitted:
- (a) Evidence of a one-time achievement, i.e., a major, internationally recognized award; or
- (b) At least three of the following:
- Documentation of receipt of a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor
- Documentation of the individual's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields
- Published material about the individual in professional or major trade publications or other major media, relating to the individual's work in the field for which classification is sought
- Evidence of the individual's participation, either individually or on a
- Evidence of the individual's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
- Evidence of the individual's authorship of scholarly articles in the field, in professional or major trade publications or other major media
- Evidence that the individual has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; and/or
- Evidence that the individual has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
OUTSTANDING PROFESSORS AND RESEARCHERS
The second subcategory of the first immigrant visa preference category is for outstanding professors and researchers. To establish this subcategory, the following must be shown:
- (a) Evidence that the professor or researcher is recognized internationally as outstanding in the specified academic field, by at least two of the following:
- Documentation of the individual's receipt of major prizes or awards for outstanding achievement in the academic field
- Documentation of the individual's membership in associations in the academic field which require outstanding achievements of their members
- Published material in professional publications written by others about the individual's work in the academic field (a proposed regulatory change would require that the publication discuss or analyze the individual's work, rather than merely briefly referring to it)
- Evidence of the individual's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field (another proposed regulatory change is that the work judged be that of other professors, researchers, or Ph.D. candidates in the academic field);
- Evidence of the individual's original scientific or scholarly research contributions to the academic field; and/or
- Evidence of the individual's authorship of scholarly books or articles in the academic field, published in scholarly journals with international circulation.
- (b) Evidence that the individual has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the individual has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding; and
- (c) If the offer of employment is for a research position in the individual's academic field, and is from a department, division, or institute of a private employer, evidence must be shown that this entity employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.
Again, in the end, INS examines the totality of the evidence presented to determine whether the individual is indeed an outstanding professor or researcher.
INTRACOMPANY TRANSFEREE EXECUTIVES AND MANAGERS
In the third subcategory, the requirements to obtain U.S. permanent residence are essentially the same as those set forth above (under Temporary Work Visas) to obtain the L-1 visa, except that individuals that possess specialized knowledge are not eligible, and the petition for this status can either be filed while the individual is in the U. S on an L-1 visa, in some other status, or even before the individual comes to the U.S.
THE NATIONAL INTEREST WAIVER
In petitioning the INS directly, the second immigrant visa preference category is the category for individuals who are members of the professions holding advanced degrees, or individuals of exceptional ability. In this category, establishing that the individual has an advanced degree can be done by submitting an educational evaluation of foreign academic credentials, or by showing an advanced degree obtained in the United States.
However, in order to be exempt from the lengthy process discussed hereafter of obtaining certification by the U.S. Department of Labor (DOL) that U.S. workers are not available, evidence must be shown that such exemption "would be in the national interest." The INS has suggested seven factors to be considered in determining what is in the national interest:
- Improving the U.S. economy
- Improving wages and working conditions for U.S. workers
- Improving education and programs for U.S. children and underqualified workers
- Improving heath care
- Providing more affordable housing
- Improving the U.S. environment and making more productive use of natural resources; and/or
- Interested government agency request.
However, proposed regulations would make significant changes to this national interest waiver by requiring that the following requirements be met to qualify for this waiver:
- The individual must have at least two years of full-time experience in the activity in which he/she will benefit the U.S.
- The national interest waiver is not based purely on a local labor shortage (since this waiver is intended to benefit the entire country, and not just a small area)
- The individual is or will be engaged in an undertaking which will substantially benefit prospectively the U.S. (i.e., further an important national goal); and
- The individual does, or will, play a significant role in the undertaking that will prospectively benefit the U.S. (rather than a relatively minor role in an important project or activity).
LABOR CERTIFICATION
The other major alternative, as suggested above, is to first apply to DOL, through an initial filing with the California Employment Development Department (EDD), to obtain a certificate that U.S. workers are not available for the permanent position offered to the individual; then, to file with the INS. This involves recruitment of U.S. workers by advertising, etc. It is a lengthy and complicated process.
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