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Permanent residence / Immigrant (“Green Card”) Visas

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To qualify as a “person of extraordinary ability” and obtain an immigrant visa (green card), a foreign-born person must meet requirements, similar to those for the O-1 visa. In other words, the applicant must demonstrate that is “one of the few who has risen to the top of his field” nationally or internationally. To this effect, the applicant must be the recipient of either:
(i) a major, internationally recognized award or
(ii) at least three of the following distinctions:
- The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise.
- The physician belongs to professional associations which require outstanding achievements of their members, as judged by recognized national or international experts.
- The physician has been the subject of articles in major media or trade publications relating to his work.
-The physician has participated on a panel or as a judge of the work of others in his area of practice.
- The physician has made original scientific or scholarly contributions of major significance.
- The physician has written scholarly articles that have been published in professional journals or other major media.
- The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; or
- The physician has commanded a high salary or other compensation.

The main advantage of qualifying as a person of extraordinary ability is that the applicant can “self-sponsor.” This means that the applicant does not need an employer sponsor. The applicant need only show that he intends to continue work in the field of his extraordinary ability. Evidence of this intent can include an employment contract, an offer of employment, or simply an expressed intent to engage in self-employment.

Caveat for Physicians: most physicians do not qualify as persons of extraordinary ability. To do so, a physician must produce extensive documentation and the support of medical experts to show that the physician has “risen to the top of the field.”

To qualify for the immigrant visa (green card) as an “outstanding professor or researcher”, an applicant must:

- Have at least three years of teaching or research experience.
- Enter the U.S. to work in a tenure-track teaching or research position at an institution of higher learning or for a public or private research lab.
- Show international acclaim as a researcher or professor by accomplishing at least two of the following achievements:
- Receipt of major prizes or awards for outstanding achievement in her field of expertise.
- Admission into a professional association that requires outstanding achievements of its members.
- The subject of an article in a professional publication detailing her work in the field of expertise.
- Participation as the judge of the work of others in the field.
- Original scientific or scholarly research contributions to the field; or
- Authorship of scholarly books or articles in the field of expertise.

Caveat for Physicians: EB-1 status as outstanding researcher or professor is not available to most foreign-born physicians. Even more, for those physicians who are researchers or professors, it can be more difficult to qualify as an outstanding professor or researcher than it is to qualify as a person of extraordinary ability. This is because outstanding professors and researchers must have achieved international acclaim (in contrast to the national acclaim required by the extraordinary ability classification). Finally, unlike the extraordinary ability track, an outstanding professor or researcher must have an employer sponsor who will petition for the professor or researcher.

In order to qualify as a multinational executive or manager under this preference, the applicant, during the three years preceding the application, must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity.

The law defines a manager as someone who:
1 Manages a corporation, department, subdivision, or function.
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or else manage essential functions.
3. Has the authority to make personal decisions as to hiring and termination, or else function at a senior level, or
4. Exercises discretion over the day-to-day operations of the activity or function for which he or she has authority.

An applicant is qualified as an executive if he/she satisfies the following requirements:
1. The person must manage an organization, major component, or function
2. The person has the authority to establish goals and policies
3. The person has wide latitude and discretionary decision-making authority or
4. The person receives only general supervision from higher executives, board of directors, or stockholders

The definition also includes executives who perform tasks necessary to produce the product or provide the service offered by the organization if the executive is also a professional, such as an engineer or architect.

In the EB-1C category, the employer directly files for Form I-140, petition for immigrant worker. As the priority date is almost always current in the EB-1 category, the employer can concurrently file for Form I-485, Adjustment of Status. However, if the alien is outside the U.S., he/she can get Immigrant Visa once I-140 is approved.

Executive Managers/Executives (EB-1C) Eligibility requirements are similar to the eligibility requirements to qualify for an L-1A visa, so it appears that that the EB-1C category for employment based green card was created especially for L-1A visa holders. However, it is not required that the applicant be an L-1A visa to qualify for EB-1C visa.

The major advantage of applying in EB-1C category is that the applicant doesn’t have to go through the expensive and time-consuming labor certification process.

To qualify for the immigrant visa (green card) as an “outstanding professor or researcher”, an applicant must:

- Have at least three years of teaching or research experience.
- Enter the U.S. to work in a tenure-track teaching or research position at an institution of higher learning or for a public or private research lab.
- Show international acclaim as a researcher or professor by accomplishing at least two of the following achievements:
- Receipt of major prizes or awards for outstanding achievement in her field of expertise.
- Admission into a professional association that requires outstanding achievements of its members.
- The subject of an article in a professional publication detailing her work in the field of expertise.
- Participation as the judge of the work of others in the field.
- Original scientific or scholarly research contributions to the field; or
- Authorship of scholarly books or articles in the field of expertise.

Caveat for Physicians: EB-1 status as outstanding researcher or professor is not available to most foreign-born physicians. Even more, for those physicians who are researchers or professors, it can be more difficult to qualify as an outstanding professor or researcher than it is to qualify as a person of extraordinary ability. This is because outstanding professors and researchers must have achieved international acclaim (in contrast to the national acclaim required by the extraordinary ability classification). Finally, unlike the extraordinary ability track, an outstanding professor or researcher must have an employer sponsor who will petition for the professor or researcher.

Applicants seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States”.

To qualify for immigrant visa (green card) through the EB-2 category, the immigrant must hold an advanced degree (master’s degree or equivalent, or higher) and be a member of a profession or show he or she has exceptional ability in the sciences, arts, or business.

Advanced Degree or Exceptional Ability

The most common way to meet the EB-2 requirements is to show that the foreign national holds an advanced degree. This itself can be shown in one of two ways:

1. First, the foreign national may show that he/she holds an academic or professional U.S. degree above the baccalaureate level. A foreign degree can also be utilized so long as it is equivalent to a U.S. degree that is above the baccalaureate level.

2. Second, in the absence of an advanced degree, the foreign national may qualify for EB-2 by holding a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. USCIS considers the combination of the bachelor’s degree and five years of experience to be the equivalent of a U.S. Master’s degree.

In the absence of an advanced degree, the foreign national may instead show he/she has such exceptional
ability in their claimed area of expertise “that it is significantly above that which would be ordinarily encountered in the foreign national’s profession.”

NIW Standard Based on New AAO Decision - Matter of Dhanasar (December 27, 2016):

Once a foreign national petitioner has established their basic eligibility under the EB-2 preference category, the foreign national must further establish that they qualify for the NIW if they wish to avoid the requirement of a job offer, a labor certificate and/or desire to self-petition.

USCIS may now grant a National Interest Waiver if the applicant satisfies the following criteria -three-prongs:
1. The foreign national’s proposed endeavor has both substantial merit and national importance: to show that the foreign national’s proposed endeavor has both substantial merit and national importance, it must be shown that the applicant’s work is related to an important national goal and that the work is beneficial to the United States.

The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact. They evaluate prospective impact not only in geographic terms but also in its broader implications.

2. The foreign national is well positioned to advance the proposed endeavor: The foreign national must demonstrate that he or she is well positioned to advance the proposed endeavor. Factors USCIS considers include, but are not limited to the individual’s education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. The petitioners need to establish, with substantial evidence, that they are well positioned to advance the proposed endeavor.

Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S government in the petitioner’s research, documentation that the petitioner played a significant role in projects funded by governmental grants, and evidence of the petitioner’s education background, skills, knowledge, expertise, and other notable achievements in his or her field including memberships or media reports.

3. Balance Test to determine if National Interest Outweighs the Need for a Job Offer: the foreign national must demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

For this requirement, USCIS may evaluate factors such as: based on the petitioner’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the foreign national to obtain a labor certification. Other factors considered include whether, even if other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contribution is sufficiently urgent to warrant forgoing the labor certification process.

This is favorable to entrepreneurs who have a history of being able to benefit the U.S. by use of their entrepreneurial endeavor, and there is a reasonable projection they could continue to do the same.

It is useful to consider the criteria for EB-1A (Alien of Extraordinary Ability) and EB-2 Exceptional Ability when compiling evidence in support of the third prong. While the standard of law is much higher for EB-1A (Alien of Extraordinary Ability) and the evidentiary requirements are thus much stricter, the EB-1A (Alien of Extraordinary Ability) criteria can provide a good idea of what types of evidence can establish the alien's past record of achievement and the significance of their proposed endeavor.

Fortunately, Congress has passed special rules regarding National Interest Waivers for physicians who work in VA hospitals or in medically underserved areas. These physicians may obtain permanent residence, provided that they perform full-time medical service in a qualifying facility for five years. There is no restriction as to specialty. After the physician has completed all five years of medical service, the DHS will approve the permanent residence application and issue the green card. The DHS will count all medical service that was completed in lawful status, even if the physician does not apply for the national interest waiver until after he has completed medical service. For example, a physician completes two years in a medically underserved area in O-1 status and then applies for the national interest waiver. The physician needs to work only three more years to meet the five-year medical service requirement.
To support a national interest waiver application, the physician must provide:
A five-year contract of employment or affirm that he will engage in self-employment for the required period of service;
Evidence that the location of employment is a designated Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA), or in a Veterans Affairs facility;
A public interest letter (no older than six months) from a federal agency or department of health of the state where the employment is located;
Proof of licensing and passage of USMLE examinations; and
Proof of waiver of the two-year foreign residency requirement for J-1 physicians, if applicable.

Caveat for Physicians: All physicians qualify as professionals with advanced degrees for this purpose. However, EB-2 physicians must be sponsored by an employer. Furthermore, the employer must obtain a labor certification unless the physician’s work is considered “in the national interest.” Such a physician qualifies for a so-called National Interest Waiver (NIW).

The main advantage to the NIW is that it allows the physician to self-sponsor. As a result, the physician may change jobs or even engage in self-employment so long as other conditions are met.

For the EB-2 and EB-3 categories, a labor certification and employer sponsorship is required. Again, the only exception is the previously discussed national interest waiver for the EB-2 category. Labor certification is the process whereby the U.S. Department of Labor (DOL) certifies that (1) there is a shortage of minimally qualified U.S. workers for the position offered and (2) the offered employment does not adversely affect the wages and working conditions of U.S. workers. The basic requirements for labor certification are:

- Full-time employment - The employer must hire the foreign worker as a full-time employee, not part-time.
- Permanent job - The employer must offer a permanent position.
- Reasonable job requirements - The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed. In addition, the employer must establish that the educational and experience requirements are not “unduly restrictive.”
- Salary must meet minimum prevailing wage guidelines – Salary offered must be the higher of prevailing wage or actual wage. Like the H-1B requirement, the employer must pay at least the “prevailing” wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The Department of Labor (DOL) determines the prevailing wage. In addition, the employer must pay at least the “actual” wage which it normally pays to its own employees who are similarly qualified.

The Application Process

Obtaining an employment-based visa can be a long and arduous process that can take years, even for physicians. For most EB-2 physicians, the first step is for the employer to file a labor certification with the Department of Labor (DOL). The DOL in Atlanta generally decides an application within 9 to 12 months of application, but sometimes the process is longer.

There are stringent recruitment procedures that the employer must follow before an application can be filed and approved. For a professional position like a physician, the employer must engage in extensive recruitment, including two Sunday newspaper advertisements, placement of a job order with the State Work Agency (SWA, paper and/or electronic posting on site, and three other forms of recruitment that are included on a list of ten recruitment types by the Department of Labor. These recruitment efforts can be conducted no later than 180 days before filing the labor certification application.

Optional Special Recruitment (“special handling”) labor certification. There are several advantages to special handling.

- First, the recruitment requirement is considerably less stringent. Only one advertisement for the position run in a national-professional journal and an onsite job posting are mandated.
- Second, the application for labor certification can be filed up to 18 months after the physician is appointed to the position. And, most importantly, the DOL will not reject the labor certification even if qualified U.S. citizen or permanent resident physicians responded to the recruitment, so long as the employer can show that the alien physician was the best qualified applicant.

PERM applications, including special handling applications, can be filed electronically or by mail using form ETA 9089. If electronically filed, the employer must obtain a PERM account from the Department of Labor before the application can be filed. Once the labor certification has been approved, then the second step is for the employer sponsor to file a Petition for Immigrant Worker, Form I-140. The final step in the green card process, the filing of the I-485 application, may be take place if there is a sufficient number of immigrant visas available and the I-140 petition has been filed or approved. Physicians who will teach as well as perform clinical and teaching duties and who are employed by universities may qualify for special handling.

Caveat for Physicians: Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three years (from the day employment starts) of required medical service before they can apply for adjustment of status or consular processing.

For example, Dr. Lopez began his J-1 waiver three-year service on July 1, 2021. The employer immediately started the labor certification process and obtained an approved I-140. The I-140 was approved on October 30, 2021. Because the J-1 waiver three-year obligation, Dr. Lopez cannot apply for adjustment of status or complete the consular immigrant process until June 1, 2024 – end of the three-year service requirement.

The only exception to this rule is for physicians who apply for a National Interest Waiver (NIW). In this case, the physician may file the I-140 and the I-485 concurrently, even before completing the J-1 waiver three-year service obligation because, under this category, the I-485 will not be approved until the physician fulfills the five-year medical service obligation as required. The advantage of filing the I-485 under the NIW is that the physician’s spouse may be able to obtain an employment authorization document (EAD). For many physicians, this is the only way their spouse can work with authorization while they complete their J-1 Waiver and & NIW obligations.

The EB-5 visa enables foreign nationals to obtain permanent residency through investing in a U.S. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

Requirements - the immigrant investor category requires three main elements:
- investment of capital
- $500,000 – if investment is in a Targeted Employment Area (TEA)
- $1,000,000 – if investment is not in a Targeted Employment Area (TEA)

- in a new commercial enterprise
- “New Commercial Enterprise” is a business that is established after Nov. 29,1990.
- The investor can consider investing in
1. an enterprise already in existence by increasing the current net worth and number of employees. The increase must be at least 40 percent. After the reorganization, you can then turn it into a commercial enterprise.
2. a troubled business which is one that has been operational for at least two years and having a 20 percent loss within the two years of acquisition.
3. The investor may also invest into the regional center that will help in the administration of the business.

- which creates jobs.
- EB-5 investor must create 10 full time employment opportunities for U.S. based workers within 24 months from obtaining permanent residence. For a business made with a regional center, the investor must show that the 10 full time jobs were made available

Investment is the placing of capital, “including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.” The capital must be at risk – “subject to partial or total loss if the investment fails.”

Source of funds - The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity

Investment options:

EB-5 investor visa applicants have two main investment options:
1. Direct Investment – EB-5 direct investors must create/find their own investment project and must take a direct managerial role in overseeing that project. Direct investment is best for those who want more hands-on control of their investment and the project that received their investment.

2. EB-5 Regional Center – EB-5 investor invests the fund in a project created and manage by a regional center. Regional centers receive designation from USCIS to administer EB-5 investment projects and are responsible for adhering to USCIS EB-5 program regulations. This option may be best for those who are more interested in the immigration goals of EB-5 (“permanent residence”) rather than obtaining a maximum return on their investment. About 90 percent of all EB-5 applicants invest through a regional center. List of Regional Centers Authorized by the USCIS & List of Regional Centers Terminated by the USCIS. THIS PTOGRAM IS CURRENTLY SSPENDED.

The Process
- EB-5 investor files Immigrant Petition with the USCIS
- Following approval of the petition, the EB-5 investor either:
- File for Adjustment of Status with the USCIS, if he is in the U.S. in lawful status, or
- File an application for Immigrant Visa with the U.S. Department of State to obtain an EB-5 immigrant visa at the respective Embassy or consulate seek admission to the United States.
- Upon the approval of the Adjustment of Status petitions or upon admission into the United States with an EB-5 immigrant visa, the EB-5 investor and derivative family members (spouse and children under 21 years old) will be granted conditional permanent residence for a two-year period.

Removing Conditions

EB-5 Investor must file a petition to remove conditions on permanent resident status within the 90-day period immediately before the second anniversary of the EB-5 investor’s admission to the United States as a conditional permanent resident.

If USCIS approves this petition, the conditions will be removed from the lawful permanent resident status of the EB-5 investor and any derivative family members.

Each year, the USCIS issues up to 480,000 family-based green cards. To be eligible for a family-based green card, an immigrant must be sponsored by a relative who is either a U.S. citizen or a lawful permanent resident. Similar to employment-based green cards, these visas are issued based upon a system that establishes priorities depending upon the immigrant’s relationship to her sponsor. Needless to say, physicians are granted no more (or no less) of a preference under this system.

The top priority is given to immediate relatives defined as “children, spouses and parents” of U.S. citizens. There is no numerical limit to the number of green cards issued for immediate relatives each year. Rather, they are deducted from the overall cap of 480,000 per year. In fact, each year, more than 200,000 immigrants receive green cards as immediate relatives. In order, the four remaining preference levels are:
- Unmarried sons and daughters of U.S. citizens (1st Preference – F1), including children of these sons and daughters. Annually, approximately 23,400 green cards are reserved for these relatives
- Spouses and unmarried children of permanent residents (2nd Preference – F2). This is, by far, the largest category of family-based green card recipients. Of the green cards allocated to these persons, 77% are allocated to spouses and unmarried children under the age of 21. The remaining 23% are allocated to unmarried sons and daughters 21 years or older.
- Married sons and daughters of U.S. citizens (3rd Preference – F3), including children of these sons and daughters. Approximately 23,400 annual visas are reserved for these relatives.
- Brothers and sisters of adult U.S. citizens (4th Preference – F4), including children of these brothers and sisters. Approximately 65,000 annual visas are reserved for these relatives.

Caveat for J-1 Physicians: Physicians who received a J-1 waiver must complete the entire three years of required medical service before they can apply for adjustment of status (Form I-485) or consular processing. This applies even to physicians married to U.S. citizens. For example, a physician began his J=1 waiver three-year service on January 1, 2019. His wife, a U.S. citizen, had filed a Form I-130 six months before. The USCIS approves the I-130 on August 1, 2019. The physician may not apply for adjustment of status or consular processing until January 1, 2022; the end of his three-year J-1 waiver service.

Outstanding Researcher or Professor (EB-1B)

To qualify for the immigrant visa (green card) as an “outstanding professor or researcher,” a foreign born person must have at least three years of teaching or research experience. Furthermore, she must enter the U.S. to work in a tenure-track teaching or research position at an institution of higher learning or for a public or private research lab. In addition, she must show international acclaim as a researcher or professor by accomplishing at least two of the following achievements:

  • Receipt of major prizes or awards for outstanding achievement in her field of expertise;
  • Admission into a professional association that requires outstanding achievements of its members;
  • The subject of an article in a professional publication detailing her work in the field of expertise;
  • Participation as the judge of the work of others in the field;
  • Original scientific or scholarly research contributions to the field; or
  • Authorship of scholarly books or articles in the field of expertise.

Caveat for Physicians: EB-1 status as outstanding researcher or professor is not available to most foreign born physicians. Even more, for those physicians who are researchers or professors, it can be more difficult to qualify as an outstanding professor or researcher than it is to qualify as a person of extraordinary ability. This is because outstanding professors and researchers must have achieved international acclaim (in contrast to the national acclaim required by the extraordinary ability classification). Finally, unlike the extraordinary ability track, an outstanding professor or researcher must have an employer sponsor who will petition for the professor or researcher.

Multinational Executives or Managers (EB-1C)

In order to qualify as a multinational executive or manager under this preference, the applicant, during the three years preceding the application, must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity.

The law defines a manager as someone who:

  1. Manages a corporation, department, subdivision, or function.
  2. Supervises and controls the work of other supervisory, professional, or managerial employees, or else manage essential functions.
  3. Has the authority to make personal decisions as to hiring and termination, or else function at a senior level, or
  4. Exercises discretion over the day to day operations of the activity or function for which he or she has authority.

An applicant is qualified as an executive if he/she satisfies the following requirements:

  1. The person must manage an organization, major component, or function
  2. The person has the authority to establish goals and policies
  3. The person has wide latitude and discretionary decision-making authority or
  4. The person receives only general supervision from higher executives, board of directors, or stockholders

The definition also includes executives who perform tasks necessary to produce the product or provide the service offered by the organization if the executive is also a professional, such as an engineer or architect.

In EB-1C category, the employer directly files for Form I-140, petition for immigrant worker. As the priority date is almost always current in EB-1 category, the employer can concurrently file for Form I-485, Adjustment of Status. However, if the alien is outside the U.S., he/she can get Immigrant Visa once I-140 is approved.

Executive Managers/Executives Eligibility requirements for the green card application in EB-1C category is so like the eligibility requirements to qualify in L-1A visa that it appears that that the EB-1C category for employment based green card was created especially for L-1A visa holders. However, it is not required that the applicant be an L-1A visa in order to qualify for EB-1C category.

The major advantage of applying in EB-1C category is that the applicant doesn’t have to go through the expensive and time-consuming labor certification process.

Labor Certification / PERM (EB-2 and EB-3)

For the EB-2 and EB-3 categories, a labor certification and employer sponsorship is required. Again, the only exception is the previously discussed national interest waiver for the EB-2 category. Labor certification is the process whereby the U.S. Department of Labor (DOL) certifies that (1) there is a shortage of minimally qualified U.S. workers for the position offered and (2) the offered employment does not adversely affect the wages and working conditions of U.S. workers. The basic requirements for labor certification are:

  • Full-time employment – The employer must hire the foreign worker as a full-time employee, not part-time.
  • Permanent job – The employer must offer a permanent position.
  • Reasonable job requirements – The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed. In addition, the employer must establish that the educational and experience requirements are not “unduly restrictive.”
  • Salary must meet minimum prevailing wage guidelines – Salary offered must be the higher of prevailing wage or actual wage. Like the H-1B requirement, the employer must pay at least the “prevailing” wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The Department of Labor (DOL) determines the prevailing wage. In addition, the employer must pay at least the “actual” wage which it normally pays to its own employees who are similarly qualified.

The Application Process

Obtaining an employment-based visa can be a long and arduous process that can take years, even for physicians. For most EB-2 physicians, the first step is for the employer to file a labor certification with the Department of Labor (DOL). The DOL in Atlanta generally decides an application within 9 to 12 months of application, but sometimes the process is longer.

There are stringent recruitment procedures that the employer must follow before an application can be filed and approved. For a professional position like a physician, the employer must engage in extensive recruitment, including two Sunday newspaper advertisements, placement of a job order with the State Work Agency (SWA_, paper and/or electronic posting on site, and three other forms of recruitment that are included on a list of ten recruitment types by the Department of Labor. These recruitment efforts can be conducted no later than 180 days before filing the labor certification application.

Optional Special Recruitment (“special handling”)labor certification. There are several advantages to special
handling.

First, the recruitment requirement is considerably less stringent. Only one advertisement for the position run in a national professional journal and an onsite job posting are mandated.
Second, the application for labor certification can be filed up to 18 months after the physician is appointed to the position. And, most importantly, the DOL will not reject the labor certification even if qualified U.S. citizen or permanent resident physicians responded to the recruitment, so long as the employer can show that the alien physician was the best qualified applicant.

PERM applications, including special handling applications, can be filed electronically or by mail using form ETA 9089. If electronically filed, the employer must obtain a PERM account from the Department of Labor before the application can be filed. Once the labor certification has been approved, then the second step is for the employer sponsor to file a Petition for Immigrant Worker, Form I-140. The final step in the green card process, the filing of the I-485 application, may be take place if there is a sufficient number of immigrant visas available and the I-140 petition has been filed or approved. Physicians who will teach as well as perform clinical and teaching duties and who are employed by universities may qualify for special handling.

Caveat for Physicians: Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three years (from the day employment starts) of required medical service before they can apply for adjustment of status or consular processing.

For example, Dr. Lopez began his J-1 waiver three-year service on January 1, 2019. His employer immediately started the labor certification process to sponsor him for a green card and obtained an approved I-140 on August 30, 2019. Because the J-1 waiver three year obligation, Dr. Lopez cannot apply for adjustment of status or consular processing until January 1, 2022 – end of the three-year service requirement.

The only exception to this rule is for physicians who apply for a National Interest Waiver for physicians. In this case, the physician may file the I-140 and the I-485 concurrently, even though he has not completed three years of J-1 waiver service. However, the I-485 will not be approved until the physician has fulfilled his five-year medical service obligation as required by the National Interest Waiver. Nevertheless, the ability to file the I-485 is a real advantage because the physician’s spouse will obtain an employment authorization document (EAD) which will allow him or her to work during the years that the I-485 is processed. For many physicians, this is the only way their spouse can work with authorization.

National Interest Waiver (EB-2)

Under the Immigration and Naturalization Act, the usual process to sponsor an alien for permanent residence requires that the employer offering the alien employment must obtain a labor certification proving that U.S. workers are not available who can fulfill the job requirements. To waive the labor certification requirement, an employer must show that such waiver would be in the national interest. In addition, the alien must hold an advanced degree (master’s degree or higher) or be considered of “exceptional ability.”

The advantages of applying for the National Interest Waiver (NIW) are:

(1) faster processing time than employer-sponsored PERM labor certification
(2) no advertising requirements; and
(3) no employer sponsorship required.

NIW categories are: Physician and General.

Physician NIW

To qualify for immigrant visa (green card) through the EB-2 category, the immigrant must hold an advanced degree (master’s degree or equivalent, or higher) and be a member of a profession, or show he or she has exceptional ability in the sciences, arts or business. All physicians qualify as professionals with advanced degrees for this purpose. However, unlike their counterparts who qualify for extraordinary ability EB-1 status, EB-2 physicians must be sponsored by an employer. Furthermore, the employer must obtain a labor certification unless the physician’s work is considered “in the national interest.” Such a physician qualifies for a so-called National Interest Waiver (NIW).

The main advantage to the NIW is that it allows the physician to self-sponsor. As a result, the physician may change jobs or even engage in self-employment so long as other conditions are met.

Fortunately, Congress has passed special rules regarding National Interest Waivers for physicians who work in VA hospitals or in medically underserved areas. These physicians may obtain permanent residence; provided that they perform full-time medical service in a qualifying facility for five years. There is no restriction as to specialty. After the physician has completed all five years of medical service, the DHS will approve the permanent residence application and issue the green card. The DHS will count all medical service that was completed in lawful status, even if the physician does not apply for the national interest waiver until after he has completed medical service. For example, a physician completes two years in a medically underserved area in O-1 status and then applies for the national interest waiver. The physician needs to work only three more years to meet the five-year medical service requirement.

​To support a national interest waiver application, the physician must provide:

  • A five-year contract of employment or affirm that he will engage in self-employment for the required period of service;
  • Evidence that the location of employment is a designated Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA), or in a Veterans Affairs facility;
  • A public interest letter from a federal agency or department of health of the state where the employment is located;
  • Proof of licensing and passage of USMLE examinations; and
    – Proof of waiver of the two-year foreign residency requirement for J-1 physicians, if applicable.

General NIW

Individuals seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Applicant must meet at least three of the criteria below.

Criteria

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

Family Members – Spouse and children under the age of 21 may be admitted to the United States in immigrant status.

Investor Permanent Residence (EB-5) – See “Investor Visa”