marc Schifanelli, Esq.
Contact US (240) 882-2402
Employer sponsored-immigration to the U.S. has increased dramatically since the late 1990's with the proliferation of the internet. Every year foreign professionals, researchers, skilled laborers and others become U.S. lawful permanent residents (“LPR”) through their current or future employer. U.S. companies, no matter what size, can petition the U.S. government via the U.S. Citizenship and Immigration Service (USCIS) for particular foreign nationals that have the skills that the company seeks.
Many of these workers are already working in visa categories H1-B, H2-B or one of several others non-immigrant visa categories. During their temporary status, the employer is pursuing a permanent status.
Department of Labor Approval
An employer that wants to sponsor an alien for permanent resident status needs to first get approval from the Department of Labor, a process known as "PERM." Essentially, the employer must first actively try to recruit U.S. citizens for the position. If qualified applicants respond, they must be interviewed and, unless there is a lawful reason to reject them, must be hired before the alien. If no qualified U.S. candidates can be found, then the employer is clear to petition USCIS to secure permanent resident status for the foreign candidate that has, at a minimum, the same qualifications for which the employer sought in recruitment.
Annual Immigration Quotas
However, if you are an employer you need to be aware that your new employee may not be able to start immediately. She may be subject to annual immigration quotas set by Congress. Depending on her skill category, she may have a long wait. The Department of State maintains the “Visa Bulletin” which can give you an idea how long the wait may be. Generally, higher skilled employees (i.e., professionals with at least a four year degree) will have a shorter wait time.
National Interest Waiver and Immigrants with Extraordinary Ability
Some individuals with advanced degrees and documented extraordinary achievement in highly technical or scientific fields of research can sponsor themselves for immigration by attaining a National Interest Waiver. They don't need a an employer willing to sponsor them.
In order to “self-sponsor” they need to demonstrate that their contribution in the chosen scientific field has brought them international recognition. For researchers, this can be demonstrated by showing that their individual research and findings have been cited and relied upon by others in the field.
But not any field of research will qualify. The applicant must prove that a) the employment she seeks is in an area of substantial intrinsic merit; 2) that the proposed benefit will be national in scope; and 3) that the national interest will be adversely affected if a labor certification filed by an employer were required.
Department of Labor and/or USCIS Evidence Requests and Audits
It happens, and often to employers who thought that it all looked easy after a little online research (this is, after all, the Information Age) and attempted to navigate the process in house. If your company is the subject of a Labor or Homeland Security audit, or if either entity is requesting to see proof of recruitment or other documents, you need an immigration attorney to assist.
The immigration attorneys at Schifanelli Law, LLP have helped professionals and researchers with advanced degrees attain National Interest Waivers and LPR status. We have assisted employers in sponsoring foreign nationals with bachelor degrees in specific areas, skilled artisans and workers, as well as laborers in various industries, to become lawful permanent residents.
Contact Schifanelli Law, LLP at 410-263-0028 for an initial consultation with an experienced Annapolis lawyer.
2450 Riva Rd., Suite 201, Annapolis, Maryland 21401.