One of the main ways to obtain permanent residence in the U.S. is through employer sponsorship. Some categories require certification from the U.S. Department of Labor to show that there are insufficient U.S. workers who are able, willing, qualified, and available in the geographic area where the immigrant is to be employed. In other cases, highly skilled workers, such as those with extraordinary ability in certain professions, and investors/entrepreneurs are given priority to immigrate through several immigrant categories. The main employment-based permanent residence categories include:
PERM Labor Certification
In most cases, employers who wish to sponsor employees for permanent residence are required to test the U.S. labor market to prove that there are no “minimally qualified” U.S. workers available for the position. The employer is required to engage in a recruitment process that includes two Sunday print advertisements and three other recruitment sources. Other administrative steps include obtaining a “prevailing wage determination” from the U.S. Department of Labor, posting a notice regarding the sponsorship at the worksite, and placing a state job order before filing the application through the U.S. Department of Labor’s online system.
EB-1 Aliens of Extraordinary Ability
This category is available to individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, and who can prove they have risen to the top of their field of endeavor. No job offer is required. Recommendation letters from other experts in the field are critical to the success of these cases. An individual can prove that they qualify for this category if they can show they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. Alternatively they must prove they possess three of the following types of evidence or comparable evidence:
- Receipt of prizes or awards for excellence in the field of endeavor
- Membership in associations in the field of endeavor that require outstanding achievements of their members
- Published material about the alien and his work in professional journals, trade publications, or the major media
- Participation as a judge of others in the same or a similar field
- Original scientific, scholarly, or artistic contributions of major significance in the field
- Authorship of scholarly articles in the field, published in professional journals or media
- Display of the alien’s work at artistic exhibitions or showcases in more than one country
- Performance in lead or critical roles with organizations with a distinguished reputation
- Commanding a high salary compared to others in the field
- Commercial success in the performing arts, as shown by box office receipts and sale
EB-1 Outstanding Researchers or Professors
This category is available to professors or researchers with at least 3 years of teaching or research experience who have gained international recognition as outstanding in a specific academic field. This experience could have been gained while pursuing an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding. Unlike aliens in the extraordinary ability subcategory, aliens in the outstanding professor or researcher subcategory must have a permanent job offer. Like extraordinary ability cases, recommendation letters from other experts are critical. Two of the following types of evidence are required:
- Receipt of a major international prize or award for outstanding achievement
- Membership in associations that require outstanding achievements of their members
- Material in professional publications written by others about the alien’s work
- Participation as a judge of the work of others in the field
- Original contributions in the field
- Authorship of scholarly books or articles in journals with international circulation
- Strong evidence includes peer-reviewed publications and participation as a peer-reviewer
EB-1 Multinational Executives and Managers
This category is available to individuals who have been employed outside the United States for at least one year by the employer or a qualifying affiliated entity in an executive or managerial capacity, who will continue working in an executive or managerial capacity for the U.S. organization. Employer sponsorship is required. A manager is defined as employee who:
- Manages an organization, department, subdivision, or function of the organization
- Supervises and controls the work of other supervisory roles or manages an essential function
- If the transferee directly supervises other employees, he or she must have the authority to hire or terminate employees or recommend hiring or termination of employees
- If the transferee does not supervise others, the multinational manager functions at a senior level within the organizational chain of command or with respect to the function managed
- Exercises direction over the day-to-day operations of the activity or function
The term executive capacity means that the transferee:
- Directs the management of the organization or a major component, or function of the organization.
- Establishes the goals and policies of the organization, component, or function.
- Exercises wide latitude in making discretionary decisions.
- Receives only broad supervision or direction from higher level executives, the board of directors, or the stockholders.
EB-2 National Interest Waiver
The National Interest Waiver is an attractive category because it does not require an employer to file a labor certification. However, to qualify for the waiver, an individual must demonstrate that they possess exceptional ability and that their employment in the United States would greatly benefit the national interest. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Factors that have been found to benefit the national interest include work that improves the U.S. economy, wages and working conditions for U.S. workers, education, health care, the environment and housing. The applicant must benefit the field to a greater degree than his or her U.S. citizen colleagues. An interested government agency request is an added factor which is given weight by the USCIS.
This category provides a method of obtaining permanent residence for foreign nationals who invest at least $1 million, creating at least 10 jobs. By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. For additional information, see Investors.