Permanent Residency Without Labor Certification

1. Immigration without labor certification: Under the Immigration Act of the 1990 ("IMMACT") as amended by recent regulations, there are several avenues available for "aliens" (the technical term for non-U.S. citizens) to obtain permanent resident status ("green card") without going through the arduous route of a labor certification. Most people are pleasantly surprised to learn of this novel route but it generally applies to those who are highly qualified. The reason these highly qualified people are allowed to immigrate to the U.S. is that the U.S. congress hopes that these people will benefit the U.S. economy or provide jobs, directly or indirectly, to benefit the U.S. economy in the long run. 

First Preference Category

A. Person's of Extraordinary Ability in the sciences, arts, education, business or athletics (i) as demonstrated by national or international acclaim (ii) which should be recognized through extensive documentation and (iii) the alien should continue the work in the same field and (iv) the entry would substantially benefit the U.S. prospectively. 

B. Outstanding Professors and Researchers who are recognized as outstanding in a specific area and have 3 years experience in teaching or research in the academic area. 

C. Multinational Executives and Managers who have been working for 1 year for a subsidiary and seek to continue work in a managerial or executive capacity.  These categories require extensive documentation to substantiate the petition.

Second Preference Category

This Preference category involves members of the professions who hold advanced degrees or aliens of exceptional ability. Although this category may require an employer and a labor certification, the Attorney General may waive this requirement if the work by the alien is in the "national interest."  The national interest standard is higher and prospective national benefit must be established. The Administrative Appeals Unit has suggested seven factors to be considered.

1. improving the U.S. economy, 
2. improving wages and working conditions for U.S. workers, 
3. improving education and programs for U.S. children and under qualified
    workers, 
4. improving health care, 
5. providing more affordable housing, 
6. improving the U.S. environment and making more productive use of the 
    natural resources, and 
7. interested government agency request.

Major Issues for Permanent Residency

1. Leave Job before Permanent residency: The general rule is that you are supposed to continue working for the Company that sponsored you for your GC because you should have had the good faith intent to work for them after obtaining labor certification and GC. 

2. Leave Job before GC: Changing employers is generally not allowed unless the labor certification has not been approved and if the new job has the exact same job description and requirements and is in the same geographic area. 

3. Work without Visa by Spouse: If one spouse has started the GC process, the other spouse cannot work without the appropriate visa. Non renumeration will not validate an invalid status. 

4. Work before Visa Number: Both you and your spouse have to adjust status or at least you need to get a visa number before the spouse can work unless he/she has separate status. 

Reentry Permit for Travel after you obtain GC

1. Reentry Permit: If a person wants to travel or live outside the U.S. for more than 6 months in a year it is advisable for the person to get a visitors visa instead of getting a GC because one could lose the GC based on the principal of abandonment of intention. One should apply for a reentry permit generally valid for a maximum period of 2 years. If your job requires you to travel, you may reapply again for an additional year but it may not be granted. 

If you as a GC holder get married and apply for your spouse, the current waiting period is 3-5 years. These times may increase or decrease based on how many people apply. 

2. Travel outside the U.S.: You should not abandon your intention to reside in the U.S. If you do so your GC could be taken away from you (forfeited at port of entry). A GC holder has to return at the minimum once a year to maintain PR status. In the alternative, upon providing valid legal reasons, s/he may be able to obtain a re-entry permit valid for a maximum period of 2 years. Otherwise, s/he would risk losing her PR status. 

3. Visa extension: Extension of a visa or status is possible under certain limited circumstances set by the U.S. State Dept. in Washington D.C. and the INS.

Labor Certification

Labor certification is still a valid avenue for some fields. There are two different methods. Traditional labor certification or Reduction in recruitment. The process may take anywhere from 3 months to 3 years depending on the field. Please contact our office to discuss your specific case. 

 
Information in this column should not be construed as legal advice and does not constitute an engagement of the Law Office of Carmen DiAmore-Siah. The information contained herein is of a general nature and may not apply to any particular set of facts or circumstances. If you require specific advice on any immigration issue, you should consult an attorney.

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