Immigrant Visas / PERM for Employees
The application for Permanent Employment Certification (Form ETA9089) is filed electronically on the Department of Labor website on a multi-page application, Form ETA 9089. PERM is an attestation-based and audit system where employers file permanent labor certification(s) on behalf of their foreign national employee(s). Employers must conduct very specific advertising and recruitment prior to filing the labor certification with the Department of Labor.
It is possible for some cases to be selected for audit (randomly, due to suspicion of fraud, or owing to the responses to certain questions on the forms). Some cases may be selected for supervised recruitment.
The approved application for permanent employment certification certifies that there are not sufficient U.S. workers who are willing, able, and minimally qualified for the position and that the employment will not adversely affect the wages or working conditions of U.S. workers in similar positions.
Upon approval of the PERM application, an immigrant visa petition must be submitted to USCIS. It is USCIS policy to require verification of the employer's ability to pay the wage offered to the foreign national in the labor certification application as of the original date of filing.
National Interest Waiver
A foreign worker with an advanced degree or exceptional skills in the sciences, arts, or business may bypass the PERM process and submit an immigrant visa petition to USCIS on Form I-140 if they are able to demonstrate that their entry will benefit the U.S. economy, cultural or educational interests, or welfare. Their occupational area must be one of “substantial intrinsic merit” that will benefit, for example:
- The U.S. economy;
- Wages and working conditions of U.S. workers;
- Education and training programs for children and unskilled workers;
- Improvement of health care or health-care delivery;
- Provision of more affordable housing for young, old, and poor U.S. residents;
- Improvement of the U.S. environment and more productive use of natural resources; or
- Accommodation of the needs of an interested U.S. government agency.
Additionally, there must be a record of past accomplishments that indicates the foreign worker’s skills will serve the national interest.
National Interest Waiver for Foreign Physicians
The criteria for eligibility for an NIW for a foreign national physician include:
- Must work full-time in a clinical practice for 5 years;
- Must work in primary care or be a specialty physician;
- Must serve in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), a Veterans Affairs facility, or (for specialists) in a Physician Scarcity Area (PSA); and
- Present a statement from a federal agency or a state department of health that has knowledge of the applicant’s qualifications as a physician and that states the applicant’s work is in the public interest
Persons of Extraordinary Ability (EB-1 Visa)
For applicants with extraordinary abilities in the arts, sciences, education, business, or athletics recognized on a national/international level. An applicant must document their abilities, seek to continue work in the field of expertise, and document that their work will benefit the U.S.
Petitions for an Extraordinary Ability green card are filed on Form I-140 with USCIS and do not require PERM labor certification from the U.S. Department of Labor. Applicants are eligible to file their application to adjust status to lawful permanent resident (Form I-485) simultaneously with the I-140 petition.
The applicant must demonstrate that they meet the following criteria:
— Receipt of a major, internationally recognized award OR
— Evidence of at least three of the following:
- Receipt of a nationally or internationally recognized prize or award for excellence in the field;
- Membership in an association related to their abilities that requires outstanding achievements of its members, as judged by national or international experts in their discipline or field;
- Published material about the applicant or their work in professional or trade publications, or major media;
- Worked as a judge of the work of others in the field (on a panel or individually);
- Applicant has made scholarly, scientific or business-related contributions of major significance in the field;
- Authorship of scholarly articles in the field, in professional journals or major media;
- Work displayed in exhibitions or showcases;
- Performance of a lead or critical role for distinguished organizations;
- Command a high salary or other compensation for services in relation to others; or
- Commercial successes in the performing arts.
Outstanding Professors and Researchers (EB1)
EB1 immigrant visas are available to certain professors and researchers. The petition is filed on Form I-140 with USCIS. Applicants may file Form I-485 Application to Adjust Status simultaneously with the I-140 petition. They do not require PERM labor certification from the U.S. Department of Labor. There is no self-petitioning in this category — the beneficiary must fall into one of the two categories described below:
— A U.S. university or institution of higher learning, offering the beneficiary:
- A tenure-track or a tenured teaching position; or
- A permanent research position OR
— A permanent research position for the applicant with a private employer with documented accomplishments and at least three persons in full-time research positions.
The applicant must have at least three years of experience teaching and/or conducting research in their field and be recognized internationally for their contributions in the academic field specified. The evidence to support this must include at least two of the following:
- Receipt of major prizes or awards for outstanding achievement;
- Membership in associations in the field which require outstanding achievement of their members;
- Published material in professional publications written by others about the foreign worker's work in the academic field;
- Evidence of participation as a judge of the work of others in the field;
- Evidence of original scientific or scholarly research contributions to the field; or
- Evidence of authorship of scholarly books or articles in the field.
The Law Offices of Sheila Starkey Hahn, PC welcomes you to contact us for information about how we can assist you with immigrant visas for employees.