Green Card Without Labor Certification
Some persons can receive permanent resident status based upon employment without first obtaining labor certification from the Department of Labor. Those persons file an immigrant visa petition immediately withU.S. Citizenship and Immigration Services (USCIS). This saves substantial time and expense for the employer and the employee.
Moreover, under limited circumstances, it is possible to obtain permanent resident status without either labor certification or an offer of employment. This document reviews the basic requirements to obtain permanent resident status without labor certification and those special circumstances when a job offer is not required.
Persons Of Extraordinary Ability In The Arts, Sciences, Business Or Athletics
An immigrant visa petition for a person of extraordinary ability in the arts, sciences, business, or athletics must be accompanied by evidence that the person has sustained national or international acclaim and that his or her achievements have been so recognized. Such evidence shall include proof of an extraordinary one-time achievement (a major internationally-recognized award), or at least three of the following:
- Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence.
- Documentation of membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts or evidenced by the membership criteria of the association.
- Published material about the applicant in professional publications or major media.
- Evidence of the applicant’s participation, either individually or on a panel, as the judge of the work of others.
- Evidence of the applicant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
- Evidence of the applicant’s scholarly articles in professional or major trade publications or other major media.
- Evidence of the display of the applicant’s work at artistic exhibitions or showcases.
- Evidence that the applicant has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
- Evidence that the applicant has commanded a high salary or other significant high remuneration.
- Evidence of commercial success in the performing arts as shown by box office receipts or record, cassette, compact disc, or video sales.
Neither an offer of employment nor a labor certification is required for this immigrant visa classification. However, the immigrant visa petition must be accompanied by clear evidence that the applicant is coming to the United States to continue to work in his or her area of expertise.
Such evidence may include proof of pre-arranged commitments such as contracts or letters from prospective employers; or, a statement from the applicant detailing plans on how he or she intends to continue his or her work in the United States. Although this visa category is available only to “those who have risen to the top of their field of endeavor,” many cases are approved on this basis.
Persons Of Exceptional Ability Or With An Advanced Degree In The Sciences, Arts, Or Business
This avenue to permanent resident status without a job offer or labor certification is available to persons with an advanced degree, or of exceptional ability in the sciences, arts, or business. To succeed, there must be extensive and strong evidence that the applicant will be engaged in work which is in the “national interest” of the United States.
An immigrant visa petition and a request for a waiver of the labor certification requirement under this immigrant visa category must include at least three of the following:
- Evidence that the applicant has an advanced degree from a college, university, school or other institution of learning relating to the area of exceptional ability.
- Evidence in the form of letters from current or former employers showing that the applicant has at least ten years of full-time experience in the field for which he or she is being sought.
- A license to practice the profession or certification for the profession.
- Evidence that the applicant has commanded a salary or other remuneration for services which demonstrate exceptional ability.
- Evidence of membership in professional associations.
- Evidence of recognition for achievements and significant contributions to industry or the applicant’s field by peers, governmental entities or professional or business organizations.
For many years, the national interest immigrant visa category enabled people working in the arts and sciences to obtain permanent resident status with relative ease and without labor certification or a job offer.
However, the case New York State Department of Transportation makes it much more difficult to obtain permanent resident status without labor certification based upon a national interest argument. This decision impacts most severely upon people early in their career because it often is difficult to satisfy the new requirement of demonstrating the foreign worker has already contributed to his or her field to such an extent that his or her work is in the national interest.
Furthermore, it now must be shown that the foreign worker’s employment would be of greater benefit to the national interest than testing the labor market for U.S. workers. Specifically, to obtain a national interest waiver of the labor certification requirement it must be shown “that the national interest would be adversely affected if a labor certification were required for the alien.”
Schedule A/Group II
In the aftermath of the New York State Department of Transportation case, Schedule A/Group II has been resurrected as a possible alternative option to obtain permanent resident status without labor certification. Significantly, the requirements under New York State Department of Transportation do not apply to the Schedule A/Group II category as a labor certification is “pre-certified” by the Department of Labor.
Thus, like a national interest case, an immigrant visa petition and supporting documentation are submitted directly to the USCIS. Although immigrant status based upon Schedule A/Group II does not require labor certification, it does require a specific offer of employment. In fact, the immigrant visa petition must be filed by an existing or prospective employer on behalf of the foreign beneficiary.
Threshold eligibility for a Schedule A/Group II exemption from labor certification requires a showing that the foreign beneficiary has been practicing “their science or art for the last year,” and that his or her past and continued work in the United States requires “exceptional ability.”
For the purposes of this provision, the term “science or art” means any field of knowledge and/or skill which colleges and universities commonly offer specialized courses leading to a degree. To qualify, however, the foreign beneficiary need not have studied at a college or university. Performing artists cannot qualify for Schedule A/Group II.
To qualify for permanent resident status without labor certification under Schedule A/Group II, there also must be evidence that the foreign beneficiary enjoys “widespread acclaim and international recognition” according to “recognized experts” in his or her field. Case law interpreting the Schedule A/Group II prior to the 1990 Act instructs that the foreign beneficiary “should be so far above the average members of his field that he or she will clearly be an asset to the United States.”
In addition to evidence that the foreign beneficiary practiced in his or her field for the previous year and will practice in the same field, in a position that requires “exceptional ability,” the regulations require the petitioning employer to complete additional forms not required in national interest waiver cases, including labor certification forms, even though labor certification is not required. The employer must also submit evidence that the alien beneficiary satisfies at least two of the following criteria:
- Documentation of receipt of internationally recognized prizes or awards for excellence in the field.
- Documentation of membership in international associations in the field which require outstanding achievement of their members, as judged by recognized international experts in their or fields.
- Published material in professional publications about the beneficiary, relating to his or her work in the field, which shall include the title, date, and author of such published material.
- Evidence of participation on a panel, or individually, as a judge of the work of others in the same or in an allied field.
- Evidence of original scientific or scholarly research contributions of major significance.
- Evidence of authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation.
- Evidence of the display of the beneficiary’s work at artistic exhibitions in more than one country.
Outstanding Professors Or Researchers With Three Or More Years Of Experience
A professor or researcher who is recognized internationally as outstanding, with at least three years of experience, can obtain permanent resident status without labor certification based upon an offer of employment from a university offering a tenure-track teaching position or a permanent research position; or, from a private employer offering a permanent research position so long as the private employer demonstrates that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field. At least two of the following forms of evidence must be presented:
- Documentation of receipt of major prizes or awards for outstanding achievement.
- Documentation of the applicant’s membership in associations which require outstanding achievements of their members.
- Published material in professional publications written by others about the applicant’s work in the academic field. Such material must include the title, date, and author of the material.
- Evidence of the applicant’s participation, either individually or on a panel, as the judge of the work of others.
- Evidence of the applicant’s original scientific or scholarly research contributions.
- Evidence of the applicant’s authorship of scholarly books or articles in publications with an international circulation.NOTE: Experience in teaching or research while working on an advanced degree will be acceptable only if the degree has been acquired, and either the teacher had full responsibility for the class taught, or the research conducted toward the degree has been recognized within the academic field as outstanding.
International Executives And Managers
International executives and managers who meet the requirements for an L-1 intra-company transferee non-immigrant visa can obtain permanent resident status without labor certification if the U.S. company which has offered them permanent employment as an executive or manager has been “doing business” for at least one year. “Doing business” means the regular, systematic, and continuous provision of goods and/or services and does not include the mere presence of an office.
The basic requirements for an L-1 visa and thus for immigrant status on this basis are set forth in another document available from our firm. The parent company abroad must also show that it has maintained the regular, systematic and continuous provision of goods and services.
Nurses And Physical Therapists
Professional Nurses who hold a full and unrestricted license or who have passed the CGFNS examination and who can show progress toward licensure do not require labor certification. A job offer, however, is required.
Physical Therapists who are eligible for a state license as confirmed by a state licensing authority can have an immigrant visa petition filed without labor certification with the BCIS by a potential employer.
Whether or not a person qualifies for permanent resident status, either with or without a labor certification, cannot be ascertained until we have had an opportunity to review the foreign worker’s credentials and potential employment options, and after a complete consultation, either in person or telephonically.