Curran & Berger

U.S. Citizens may sponsor their spouses, children, parents and brother/sisters for permanent residence.  Legal Permanent Residents may sponsor their spouses and children under age 21.  This section reviews the immediate relative and preference categories.  Additional information can be found on the USCIS website.

The most common paths to an employment-based green card require that the foreign national be sponsored by an employer. These categories include Labor Certification, which is applicable for all jobs, and Outstanding Researcher/Professor, which is applicable for tenure track or permanent research faculty only.  The only two employment-based immigrant visa categories in which a foreign national may self-petition are National Interest Waiver (EB-2) and Extraordinary Ability (EB1-1).

If you wish to sponsor a foreign national for legal permanent residence (i.e., a “green card”) in the United States, the most common way to do so is via the Labor Certification process. In 2005 the Department of Labor instituted a more centralized on-line procedure for Labor Certification, now commonly referred to as PERM.

Alien Labor Certification is a process by which an employer may sponsor an employee for permanent residence. There are no jobs that cannot qualify for Labor Certification. The goal of the Labor Certification Process is to make sure that foreign workers are not taking jobs from qualified U.S. workers. The actual standard is that Labor Certification will be granted if there are no U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Professors, instructors and lecturers at any post-secondary educational institution may be eligible for an expedited type of labor certification application called "special handling." The Department of Labor does not require the college to show that there are no U.S. workers available for the job (almost impossible for academic jobs), only that the employee was hired via a competitive recruitment and selection process. Applications for Special Handling MUST be submitted to the Department of Labor within 18 months of the date of the offer letter. Employers must be able to document that one print advertisement in a national professional journal was placed for the position and that notice was provided internally to employees or to the union representative.

This category does not require a job offer or a Labor Certification.

As with National Interest Waivers, this category does not require that the individual have an offer of permanent employment; however, the standards for this category are higher, including only those individuals who are at the very top of their field. While USCIS regulations specifically list fields of endeavor in the sciences, arts, education, business, or athletics, they have also exercised broad interpretation of how specific occupations fit into these fields; even animal trainers who meet the extraordinary ability standards have been approved as aliens of extraordinary ability in "the arts".

A National Interest Waiver does not require a job offer or a Labor Certification.

The level of scrutiny for National Interest Waivers has increased substantially since the mid-1990's.  However, we continue to find NIWs a successful category for carefully screened, well-documented petitions. The main obstacle we have encountered in the past few years is inconsistency on the part of the USCIS in adjudicating these petitions, and suspicion of those who have not yet received their Ph.D.

Individuals who possess an advanced degree (Master's level or above) and/or who can demonstrate exceptional ability in their field may be eligible to apply for a "National Interest Waiver".

This category requires a job offer, but not a labor certification.

In order to qualify as an "Outstanding Researcher or Professor", an individual must have:

• An offer of a permanent teaching or research position with an appropriate institution of higher learning or research institution. The USCIS considers a permanent position to be one that is either tenured, tenure-track, or for a period of indefinite or unlimited duration;

• At least three years of teaching or research experience in the field of specialization; and

• Recognized outstanding accomplishments in the field.