U.S. PERMANENT RESIDENCY (GREEN CARD)

Within 180 days from the date of the approval of the Labor Certification, the employer must file the approved Labor Certification with the USCIS together with an Immigrant Visa Petition for Alien Worker (Form I-140), or the approved Labor Certification will expire. In the case of individuals exempted from Labor Certification, the employer needs not file an application for labor certification with the U.S. Department of Labor, and may file the Immigrant Visa Petition for Alien Worker (Form I-140) directly with the USCIS. The employer must demonstrate its ability to pay the proffered wages (which may include copy of its federal tax returns or other documentation evidencing employer’s ability to pay the salary), and that the foreign national meets all of the requirements listed on the labor certification, providing documentation evidencing the alien’s education and experience.

The majority of immigrants seeking permanent residence in the U.S. based on employment opportunity is in the U.S. and therefore may apply for the benefit of “adjustment of status” within the U.S. as opposed to processing their immigrant visa at a U.S. consulate abroad. However, because there is a limit on the number of Green Cards that may be issued every year to Employment-Based Preference Categories, not all employment-based preference categories beneficiaries can simultaneously file their Application for Adjustment of Status together with the I-140. Waiting periods are imposed which vary depending on the type of employment-based preference category (EB-1 thru EB-5) and the country of birth of the prospective immigrant. The U.S. Department of State sets such quotas in its Visa Bulletin on a monthly basis, which table indicates the waiting period, if any, for the pertinent Employment-Based Preference Category. Thus, simultaneously with the I-140 Visa Petition filing, it must be determined whether the employee is eligible to concurrently file his/her application for Permanent Residency (Adjustment of Status) here in the U.S., together with the I-140, or file the adjustment of status application when the pertinent quota opens, or maybe s/he must apply for an Immigrant Visa at an American Consulate abroad.

Together with the Application for Adjustment of Status, an applicant may also file an Application for Employment Authorization. With a few exceptions, the alien may NOT leave the U.S. while the Application for Adjustment of Status is pending and before the Green Card application is approved - if you do so, your application may be denied. Under certain circumstances the alien may file an application to get permission to leave the U.S. for a short period of time in emergency case while the application for Adjustment of Status is pending.

EXAMPT FROM LABOR CERTIFICATION

1.       Multinational Managers or Executives who have been employed as Managers or Executives for the petitioning employer or one of its subsidiaries or affiliates abroad for 12 months or more, and who will continue to work in a Managerial or Executive capacity in the U.S.

2.       Outstanding Professors and Researches with a minimum of 3 years of research experience AND who have been published and cited in recognized journals in their field (other achievements may also qualify).

3.       Extraordinary Ability individuals who can demonstrate a high level of expertise who rose to the top of their field.

4.       Individuals who work in an occupation which is in the national interest of the U.S.

5.       Registered Nurses and Physical Therapists (Schedule “A” occupations).

6.       Investors (Alien Entrepreneur) – self petitioning.

INVESTORS (Alien Entrepreneur)

You may file the Investors’ petition FOR YOURSELF, if you have invested in a new commercial enterprise you have established or investment in a troubled business:

1.       In which you will engage in a managerial or policy making capacity, and

2.       You have invested or are actively in the process of investing the required amount of $1M (unless adjusted downward for targeted areas or upward for areas of high employment), and

3.       It will benefit the U.S. economy, and

4.       Will create full-time employment in the U.S. for at least ten (10) U.S. employees, (other than yourself, your spouse, son or daughters). Investment in a troubled business does not require the creation of 10 new jobs, but the number of employees must be maintained at the pre-investment level.

Establishing a new commercial enterprise may include:

1.       Creation of a new business;

2.       Purchase of an existing business with simultaneous or subsequent restructuring or reorganization resulting in a new commercial enterprise; or

3.       Expansion of an existing business through investment of the required amount , so that a substantial change of at least 40% in either the net worth, number of employees, or both, results.

Troubled business is defined as a business that has been in existence for at least two (2) years and has incurred a net loss of at least 20% of the company’s net worth.

Investing the required amount means the actual commitment of the required amount of capital, which may include:

1.       The deposit of monies, cash, cash equivalents (such as certificate of deposit, treasury bonds, or other instruments that can be converted readily into cash), by the alien himself in the enterprise’s business account – the investor must submit evidence that the capital s/he invested was obtained through lawful means;

2.       The purchase of assets, equipment, or inventory, by the alien himself for use in the U.S. enterprise;

3.       The transfer of assets owned by the investor from abroad for use by the commercial enterprise;

4.       The transfer of monies owned by the investor to the commercial enterprise in exchange for shares of stock;

5.       A loan (obtained by the investor, not by the company), a promissory note made out by the alien and payable to the commercial enterprise, security agreement, mortgage agreement, or other evidence of the investor’s borrowing which is secured by assets of the alien and for which the investor is personally liable (provided that the assets of the new enterprise are not used to secure the debt). Investor’s personal guarantee on the business’s debt does NOT qualify.

6.       The alien investor must demonstrate s/he put his/her capital investment “at risk” and cannot receive guaranteed returns/payments, interest payments on capital s/he loaned to the enterprise, nor have an option to sell his/her interest in the company at a fixed price.

If approved, the alien investor will get a temporary conditional resident status valid for two (2) years. Within 90 days prior to the two-year anniversary, the alien must file a petition with USCIS requesting that the conditional basis be removed. You must establish that you have complied with the conditions of the investor program. Failure to file such petition will result in termination of status and issuance of an order to show cause.