To qualify as a “person of extraordinary ability” and obtain an immigrant visa (green card), a foreign applicant must prove that s/he is “one of the few who has risen to the top of their field of endeavor,” either nationally or internationally. As a result, s/he must be the recipient of either (i) a major, internationally recognized award or (ii) at least three of the following criterions:
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 and will 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. Furthermore, s/he must show international acclaim as a researcher or professor by providing evidence of at least two of the following criterions:
To qualify for the immigrant visa (green card) as a multinational executive or manager, the foreign national applicant must have been employed for at least one year, during the three years preceding the submission of the application, by the same multinational firm or other defined 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.
Under the Immigration & Nationality Act (INA), the governing immigration law, a “manager” is strictly defined as someone who:
Under the Foreign Labor Certification Program (PERM Process), a foreign employee applicant (beneficiary) requires a labor certification and employer sponsorship to qualify under either the EB-2 or EB-3 preference visa category. Under the EB-2 National Interest Waiver, the labor certification is waived, but this section discusses the EB-2 category of positions requiring a professional who holds an advanced degrees and the foreign national applicant holds the same.
Under the EB-3 category, the covered positions include “professionals”, where the position requires a person holding a U.S. bachelor’s degree or foreign equivalent, and it is a normal requirement for entry into the occupation; “skilled workers”; and “other workers.”
Generally, the Department of Labor’s Foreign Labor Certification Process is 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:
Obtaining an employment-based visa via the foreign labor certification process can be a long and arduous one 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). Processing times for the DOL continue to change and be in a state of flux. For the most current processing times, click here.
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 onsite, and three other forms of recruitment that are included on a list of ten compliant/acceptable recruitment types by the Department of Labor. These recruitment efforts can be conducted no later than 180 days before filing the labor certification application. The filing date of the labor certification will establish the controlling priority date for the matter.
There are several advantages to special handling.
First, the recruitment requirement is considerably less stringent. Only one advertisement for the position runs in a national professional journal and an onsite job posting, are required.
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 & Permanent Residence
PERM applications, including special handling applications, can be filed electronically via FLAG, or by mail. Once filed, the Department of Labor will review and determine whether to certify, audit, or deny.
Once the labor certification has been certified, the employer sponsor files a Petition for Immigrant Worker, Form I-140. When that petition is approved, the foreign national will be eligible to either continue with the immigrant visa process or adjustment of status once their priority date is current according to the preference category in the country of chargeability.
CAVEAT FOR FOREIGN PHYSICIANS: The Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three (3) years (from the day employment starts) of required medical service before they can apply for adjustment of status or consular process their immigrant visa.
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 of the J-1 waiver three-year obligation, Dr. Lopez will not be able to apply for adjustment of status or consular process his immigrant visa until at least, January 1, 2022 – when he will complete the three-year service requirement.
However, there is one exception to this rule and that applies to physicians who apply for a Physician National Interest Waiver. In this case, the physician may file the I-140 and the I-485 concurrently, even though s/he has not completed three years of J-1 waiver service. Nevertheless, the I-485 will be held in abeyance is not eligible for approval until the physician has fulfilled his/her five-year medical service obligation as required by the Physician National Interest Waiver. Nevertheless, the ability for eligible physicians to file their Form I-485, Application for Adjustment of Status, is a real advantage because the physician’s spouse will be eligible to obtain an employment authorization document (EAD) during the pendency of the entire adjustment of status process. For many physicians, this is the only way their spouse can work with authorization under the current framework of immigration law in 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. Note, 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 under the Physician National Interest Waiver (NIW).
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 either. After the physician has completed all five years of medical service, the DHS will approve the permanent residence application and issue the lawful permanent resident status (green card).
To support a national interest waiver application, the physician must provide:
Individuals seeking a national interest waiver are requesting that the Labor Certification requirement 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 country at large. An applicant must meet at least three of the criteria listed below: