Guide to U.S. Immigration

11. Employment Based Permanent Residence

If a U.S. company sponsors an alien for permanent residence, it may be possible for that alien to obtain permanent residence status.

Labor Certification - Department of Labor

If the Department of Labor issues a Labor Certification then an alien may petition the Immigration Service for permanent residence. The theoretical basis for a Labor Certification can be summarized as follows; If no Americans can qualify for the job position offered by the sponsoring company, then a Labor Certification will be issued. For example, American workers cannot generally qualify for the position of Japanese cook for a Japanese restaurant and this occupation is certifiable. In some cases an Import-Export Manager required to be bilingual in Japanese and English may be certified.

However, a job offer cannot be so restrictive that it is not a bona fide job. Or the job cannot be so custom tailored to fit the alien as to make him the only possible person qualified for the job position. What is acceptable and what is restrictive depends on the circumstances and for borderline or difficult cases the use of an attorney specializing in the preparation of Labor Certification applications may be advisable.

After the Labor Certification is approved a petition on Immigration form I-140 is filed with the Citizenship & Immigration Services Office. After this petition is approved, the alien will obtain his permanent residence within the US or in Japan at the American Embassy depending on individual circumstances. If the alien has a valid visa (for example an E-1 visa), then he can obtain his permanent residence status in the US. The alien's spouse and children under 21 are automatically granted a permanent residence visa at the same time.

In March, 2005, the Department of Labor started a new labor certification procedure called PERM.  This procedure should speed up the processing of labor certification applications.  There are new expanded recruitment procedures for potential US workers required and applicants may now file their applications online.

First Category - Priority Workers

This category has three sections. A labor certification approved by the Department of Labor is not required for this category.

a. This section will grant permanent residence to persons of "extraordinary ability" in the sciences, arts, education, business or athletics demonstrated by sustained national or international acclaim. The alien must continue to work in the same area and the granting of permanent residence must substantially benefit the United States.

b. This section will grant permanent residence to outstanding professors and researchers. The alien must enjoy international recognition in a specific academic field and must possess at least three years experience in teaching or research. The alien must accept a position as a university teaching position, or comparable research position at a university, research institution, or private employer.

c. This section will grant permanent residence to multinational executives and managers. The alien must have been employed in an executive or managerial position in Japan for at least one year within the past three years with the Japanese parent company and must also be employed in the U.S. (Japanese subsidiary or affiliate company) in a managerial or executive capacity. Under this category Japanese staff holding an E or L visa may qualify under this category.

Second Category

This category has two categories. This category requires a labor certification approved by the Department of Labor prior to opening a case with the Citizenship & Immigration Services Office. The labor certification requirement will not be required where a national interest waiver is approved by the Citizenship & Immigration Services Office.

a. This section will grant permanent residence to members of the professions holding advanced degrees (Master's Degree or higher). An alien with a minimum of a Bachelor's Degree and a combination of education and experience equivalent to an advanced degree may qualify for this category.

b. This section will grant permanent residence to persons of to exceptional ability. (Note that this is a lower standard than the requirement of extraordinary ability of the first category.) Applicants under this category must show that their permanent residence position will substantially benefit the United States.

Third Category

This category has three sections. This category requires an approved labor certification from the Department of Labor.

a. This section will grant permanent residence to workers in short supply in the U.S. labor market and who have at least two years experience in the position that is sponsored.

b. This section will grant permanent residence to members of the professions who possess a bachelor's degree for the position sponsored.

c. This category will grant permanent residence to alien workers who are in short supply in the U.S. labor market (less than 2 years experience or without a bachelor's degree) for the position sponsored.

Fourth Category

This category will allow permanent residence to special immigrants as designated by the government. The current designation is for ministers.

Fifth Category

This category will allow permanent residence for aliens investing in a new commercial enterprise which will create full- time employment for at least 10 persons other than the alien's spouse or children. The standard investment will be in the amount of one million dollars. However, the Citizenship & Immigration Services Office may change that amount between one half million and three million dollars depending on the area. The alien will be granted conditional permanent residence for two years, after which the enterprise will be examined to determine if it meets the original criteria. If the test is successfully met, the alien will be granted permanent residence.