San Francisco Immigration Lawyer Q & A: Labor Certification Application/PERM based green card cases and U.S. labor market tests

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position?

MR: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

Stage 1: Labor certification application, ie, PERM – to Department of Labor.
Stage 2: I-140 Petition for Immigrant Worker – to the Immigration Service (US CIS).
Stage 3: Clearance for US lawful permanent residence, ie, the green card, through “adjustment of status” performed on US soil or “immigrant visa processing” performed at a US consulate abroad.

The employer must test the U.S. labor market for the position offered to the foreign national, to see if there is a U.S. worker – instead of the foreign national – qualified and available for the job. After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process. If a qualified and available U.S. worker is found, the green card process stops. Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified US workers who should be offered the job first. It does not prevent trying for the green card again.

Actual Job Requirement is KEY. It is important to note the qualifications of the applicant, for example, a Master’s degree, represents only half the equation in determining the EB-2 or EB-3 category. The other half is the employer’s minimum requirements for the position. For example, an applicant may have a US master’s degree, but the position only requires a bachelor’s degree. Such a case would not qualify under the EB-2 category. In other words, the applicant has the EB-2 advanced degree, but the job does not require such a high level of education/experience. Therefore, it is an EB-3 case.

Recruitment: The employer must describe to DOL, and later prove if asked, its recruitment efforts to demonstrate that a qualified, willing, and able US worker is not available to fill the position. All of the following recruitment efforts must be completed within a 180 day period before the PERM application filing date; with no more than one non-mandatory recruitment action occurring within the 30 days prior to filing the application.

MANDATORY RECRUITMENT STEPS

(1) JOB ORDER WITH SWA. A “Job Order” must be placed with the State Workforce Agency for at least 30 calendar days.
(2) NEWSPAPER ADVERTISEMENT. Two Sunday-edition print advertisements must be placed in a major paper serving the geographical area of intended employment
(3) INTERNAL POSTING. A notice of the employment opportunity must be physically posted for 10 consecutive business days in a conspicuous place at the place of employment. Further, the internal posting notice must be published in any and all in-house media, in accordance with the normal recruitment procedures used for similar positions in the your organization. This would include a job board, Intranet site, newsletters, etc

PLUS 1-of-3 ADDITIONAL RECRUITMENT STEPS

(4) JOB FAIR participation
(5) EMPLOYER’s EXTERNAL Website Posting
(6) JOB SEARCH WEBSITE Postings (ie, Monster.com). Web-based postings of the job opportunity made in conjunction with placement of the newspaper advertisement are considered additional recruitment
(7) EMPLOYEE REFERRAL PROGRAMS
(8) LOCAL/ETHINC NEWSPAPER Advertisements
(9) ON CAMPUS RECRUITING
(10) TRADE or PROFESSIONAL ORGANIZATION Media
(11) PRIVATE EMPLOYMENT FIRM Listings
(12) RADIO or TV Advertisements

Recruitment Report and Post Recruitment: The employer must sign and maintain a detailed report describing the recruitment steps and the results achieved. If a qualified, willing, and able US applicant is found to be available for the position offered in the PERM application, the employer is not required to hire the applicant, but may not file the PERM application with the DOL.

Review of the Labor Certification application may lead to a DOL “audit.” The DOL may randomly, or for specific cause, audit applications. If an application is selected for audit, the employer will generally have 30 days to submit the required documentation. Requested documentation could include evidence of recruitment activities, resumes of applicants, prevailing wage determinations, or business justification for position requirements, etc.

San Francisco Immigration Lawyer Q & A: Can my employer sponsor me for a green card while I am in F-1 OPT status?

Q: I am in F-1 OPT [optional practical training] status and my employer wants to apply for green card. I graduated with a Master of Science in December 2010 and started my OPT in February 2011. Currently I am working for a leading IT company on a contract basis from March 2011 – present. I am planning to apply for an H-1B visa for April 2012 quota. For now, my employer wants start green card process while I am in F-1OPT status. My questions:

1. Am I eligible to start green card when I am in OPT status?

MR: Yes, the employment based green card process can start while you are in F-1 [student] status. Notably, your green card case is based on a prospective offer of employment. In other words, you need only be employed in the prospective position “upon issuance of the green card” – which means when your I-485 [adjustment of status] application is approved. Depending on the nature of your case, this might not occur for years.

2. If eligible, will I be considered as potential immigrant because I am applying in OPT (without H1) and will it spoil my future visa processing?

MR: Yes, you would be considered a potential immigrant, which is why companies often have a policy of changing F-1s and TNs [another temporary intent visa classification] to H-1Bs BEFORE starting the green card process. However, this change is not required for eligibility to start a green card case, and you need to consider in what context the issue of intent becomes relevant.

Primarily, immigrant intent might harm you if you are seeking an extension of your F-1 status, or if you are seeking entry to the US in F-1 status. In either of these scenarios USCIS/CBP might refuse the extension/entry based on determination you have immigrant intent [and therefore do not meet the temporary intent requirement for being a student].

Assuming you are not seeking an extension or plan to travel and return in F status, you should have no trouble avoiding either of this potential pitfalls. NOTE: Once you secure H-1B status on October 1, 2011, the next time you leave the US you will likely need to secure an H-1B visa stamp at a US consulate abroad. The H-1B does not require temporary intent, so a pending green card matter should not have a negative impact on your H-1B visa stamp application.

The other common scenario where immigrant intent might harm an F-1 is when the F-1 files a green card application shortly after entering the US in F-1 status. This might lead to a presumption of fraud. Specifically, that the F-1 never intended to study in the US; rather, just wanted to enter for the purpose of filing a green card application inside the US.

Assuming you started F-1 status year(s) ago, attended and finished school, this presumption should not apply to you.

3. If not eligible then what is the edibility criteria and when to start the process?

MR: As discussed above, you are eligible to start. To be clear, someone does not have to be in H-1B status to start a green card case. This is just the most common scenario. Eligibility criteria for employment based green card can be reviewed here: http://www.ryvinlaw.com/services/employment-based-green-cards/

4. Can you please brief me about the green card process for my situation.

MR: I would need to see your resume to review your best available green card options. You should also note that for most green card categories, both you and position offered must qualify. For example, with a Master’s degree, you have the qualifications for EB-2, but if the job offered does not require someone with a Master’s degree [or equivalent] then you cannot file in the EB-2 category.

***

Please let me know if you require clarification. Sounds like you have some good options ahead of you and I wish you the best of luck!

Sincerely,

Michael Ryvin, Partner
Rvyin Wallace Group
michael@ryvinlaw.com
1-415-765-0679

NIW [National Interest Waiver] green card petition approved for PhD student with only 3 scientific research publications and seven citations!

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population.  USCIS acknowledged “that the proposed employment was in the national interest of the United States”. BUT, USCIS also had serious doubts about whether our client’s “past record of specific prior achievement justified projections of future benefit in the national interest”.

By working closely with our client and some of the leading organizations in the United States devoted to research and education in all aspects of gerontology, we prepared a comprehensive response which clearly demonstrated that despite our client’s low number of publications/citations, her impact on the field was substantial.  Specifically, we solicited the opinions of the aforementioned leading organizations, and documented her influence on the field by showing that other leading figures in the field were not only taking notice of her work, but were also using it to advance their own work. 

Ultimately, we are so pleased that our client can now focus on helping America’s elderly population without being distracted by the immigration process!

Please find a description of the legal requirements for the EB-2 I-140 NIW petition after the jump.


Request for approval under the EB-2 NIW [Employment Based Second Preference, National Interest Waiver] category is made through a Form I-140 Petition for Immigrant Worker, filed with the USCIS. 

This category does NOT require an employer to act as a sponsor, allowing a foreign national to “self-petition”.  Further, based on current supply and demand for green cards, if the foreign national was born in a country other than India, China, Dominican Republic, Mexico or Philippines, the Form I-140 petition may be filed concurrently with a Form I-485 adjustment of status application – effectively allowing the foreign national to adjust from a temporary [nonimmigrant] status in the United States [such as F-1, J-1 or H-1B] to lawful permanent resident [green card] status.

Notably, for cases where the strength of the NIW case is questionable, it is also possible to file a stand-alone Form I-140 petition, which is a good way to “test the waters” and control cost.

The legal requirements for the EB-2 NIW are as follows:

(1) a history of past achievement that will lead to tangible benefits in the national interest;
(2) that you will continue to work in an area of substantial intrinsic merit;
(3) that your application for permanent residence deserves to be placed at the head of the line because your  work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test:

(1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;”
(2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and
(3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test. The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

(1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or
(2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Please don’t hesitate to contact the attorneys at Ryvin Wallace Group if you want to discuss your case for the National Interest Waiver!

Q & A: NIW [National Interest Waiver] green card petitions, legal standards and practical tips

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that’s where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer:  Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.


The EB-2 NIW I-140 petition should demonstrate the following:

1) a history of past achievement that will lead to tangible benefits in the national interest;

2) that you will continue to work in an area of substantial intrinsic merit;

3) that your application for permanent residence deserves to be placed at the head of the line because your work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test: (1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;” (2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and (3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test.

The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or

2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Finally, here is a blog post related to EB-1 cases, which provides additional insight into how USCIS reviews cases for applicants similar to you: http://ryvinimmigrationblog.blogspot.com/2011/0

Best of luck and please do not hesitate to contact me if you need assistance.

Michael Ryvin
michael@ryvinlaw.com