Step 1:

Labor Certification: Your employer must demonstrate to the Department of Labor that it is unable to locate qualified or available U.S. workers for your position in the geographic area where you work. This process is currently taking six to twelve months.

Step 2:

I-140 (Immigrant Visa Petition): Your employer must then file a petition with the USCIS and demonstrate that you qualify for the position as described in the labor certification. This may take two to twelve months.

Step 3:

I-485 (Adjustment of Status): This is the application filed by you and your family members to “adjust” your status from temporary worker to permanent resident. This step currently takes six to eighteen months. Some permanent residence categories do not require labor certification (intracompany managers and executives, and “outstanding” researchers, persons of “extraordinary” ability and persons of “exceptional” ability whose work is in the “national interest”).

The first employment-based preferences (EB1) do not require labor certification. EB-1 is set aside for priority workers falling into one of the following categories:

• Individuals demonstrating “extraordinary ability” in the arts, sciences, education, business, and athletics (EB1-1).
• “Outstanding researchers” and professors (EB1-2).
• “Multinational managers” and executives transferred to the U.S. from a foreign affiliate, subsidiary, branch or parent of the U.S. office (EB1-3).

The second employment-based preference (EB2), which usually requires labor certification, is set aside for the following:

• Individuals who possess “exceptional ability” in the sciences, arts and business who are entering the U.S. to fill a position which requires an individual of exceptional ability.
• Individuals who possess an advanced degree (defined as any U.S. academic or professional degree above a bachelor’s degree level OR a bachelor’s degree and at least five years of progressive experience) who are entering the U.S. to fill a position that requires an advanced degree.

Labor certification is required for the second employment-based preference category, unless it can be demonstrated that your entry will benefit the U.S. national interest to such a high degree that it is not in the interest of the country to recruit U.S. workers for the position. The standard of proof required to demonstrate “national interest” is difficult to meet.

The third employment-based preference (EB3), which always requires labor certification, is set aside for the following:

• “Professionals” with a bachelor’s degree (actual U.S. degree or foreign degree equivalent).
• Skilled workers (filling positions requiring at least 2 years of training and experience).
• Unskilled workers (filling positions that require less than 2 years of experience).

Which preference category is appropriate for you is dependent upon your qualifications and the position duties.

1. Qualifications for classification as an individual of extraordinary ability (EB1-1)

To qualify as an individual of extraordinary ability in the sciences, arts, education, business or athletics, you must be able to document sustained national or international acclaim and that you are coming to the U.S. to continue work in the area of your extraordinary ability, by providing evidence of:

1. Receipt of a major internationally recognized award, such as the Nobel Prize; OR
2. At least three of the following requirements:
   • Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor (selection criteria must be provided).
   • Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields (selection criteria must be provided).
   • Published material about you in professional or major trade publications or other major trade media, relating to your work.
   • Evidence of your participation, either individually or on a panel, as a judge of the work of others in your field or an allied field.
   • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field.
   • Evidence of your authorship of scholarly articles in your field, in professional or major trade publications or other major media.
   • Evidence that you have been employed in a leading or critical role for organizations or establishments that have a distinguished reputation.
   • Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in your field.

The USCIS strongly encourages submission of reference letters from credible sources that evidence how you have risen to the very top of your field. The letters should also describe your abilities and accomplishments in your field. Your employer should also provide a description of the nature and importance of the duties that you are performing and why the position requires the services of an individual possessing extraordinary ability.

2. Qualifications for classification as an outstanding researcher (EB1-2)

In order to establish that you qualify as an outstanding researcher or professor, the USCIS requires evidence of at least two of the following:

• Documentation of receipt of major prizes or awards for outstanding achievement in the academic field (selection criteria must be provided).
• Documentation of membership in associations in the academic field which require outstanding achievements of their members (selection criteria must be provided).
• Published material in professional publications written by others about your work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.
• Evidence of your participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field.
• Evidence of your original scientific or scholarly research contributions to the academic field.
• Evidence of your authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

In addition, you will need to establish that you possess at least three years of research and/or teaching experience. This experience can include time spent towards an advanced degree so long as you acquired the degree, and if the research conducted while working toward the degree has been recognized within the academic field as “outstanding.” Letters from academic advisors or former employers should be used to confirm your contributions to your field.

3. Qualifications for classification as a multinational manager or executive (EB1-3)

In order to qualify as a multinational manager or executive, you must have been employed with the petitioning employer or an affiliate company abroad for at least one full year in the three years immediately prior to your employment in the U.S., in a managerial or executive capacity. The permanent position with the U.S. employer must also be at a managerial or executive level. This immigrant visa classification is similar to the L-1A nonimmigrant visa category, except that the immigrant (permanent residence) option requires that the employee have filled a managerial or executive role with the company abroad as well as in the U.S. The USCIS definition of “manager” includes the traditional managerial responsibilities (e.g. supervision of professional personnel, authority over personnel decisions, responsibility for budget and planning aspects of operations, etc.) The USCIS regulations also take into consideration the role of “functional” managers who manage an essential function within the organization and exercise direction over the day-to-day operations of the activities or function for which they have responsibility.

During “Adjustment of Status” (AOS) processing in the U.S., H-1B or L-1 employees (and their derivative family members) may continue to travel on their valid H or L visa OR may travel pursuant to USCIS travel permission [“advance parole”].

While the AOS is pending, an H-1B or L-1 nonimmigrant may obtain an Employment Authorization Document (EAD) to continue to work at their sponsoring employer after the expiration of his or her H or L visa petition, or work at an employer other than the sponsoring employer. (Note, however, that a permanent resident application does not become “portable” to another employer until six months after filing the AOS.) While the AOS is pending, family members may also work after being issued an EAD.

If the principal applicant or a family member works pursuant to an EAD, he or she would no longer be maintaining nonimmigrant (H-1B, H-4, L-1, or L-2) status and thus may not utilize and H or L visa to re-enter the U.S. Individuals who work on an EAD for another employer and any dependent family members in H-4 or L-2 status who works after being issued an EAD must obtain an advance parole for travel outside the U.S. If individuals in this situation leave the U.S. without an advance parole, the USCIS will consider their AOS applications “abandoned.” If you are able to re-enter the U.S. in another status, your must file a new AOS application and supporting documents to re-start the process.

E, TN, or O visa employees (and their derivative family members) who file AOS applications may travel ONLY on advance paroles; they may not travel on their nonimmigrant visas. The advance paroles must have been obtained prior to leaving the U.S. The USCIS considers leaving the U.S. without an advance parole as abandonment of the AOS.

Processing time for advance paroles is approximately three months. Thus, there is a period of approximately three months after filing the AOS application and advance parole during which AOS applicants previously in E, TN, or O status may not travel. While the AOS is pending, the previous E, TN, or O nonimmigrant and their derivative family members (all of them are now considered “adjustment applicants”) may obtain EADs.

• Birth Certificate: This must be a “long form”, with names of BOTH parents of each applicant, with an English translation. (See additional information in 12 below regarding birth certificates).
• Marriage certificate, if applicable. PLEASE NOTE: If you are not married at this time, but intend to get married in the next few years, it is in your best interest to be married BEFORE you become a U.S. permanent resident, so that your spouse may immigrate with you. U.S. permanent residents do NOT have the immediate right to immigrate a foreign national spouse (it currently takes approximately five years to immigrate the spouse of a U.S. permanent resident).
• Divorce decree or death certificate for previous marriages, if applicable.
• Medical examination documents completed by an USCIS-approved physician, including evidence of certain vaccinations (Mumps, Measles, Rubella, Polio, Tetanus and diphtheria toxoids, Pertussis, Influenza type B, Hepatitis B, Varicella (chickenpox), Haemophilus influenza type B, and Pneurnococcal). If you have not previously received these vaccinations or cannot provide evidence of your immunization history, please consult your personal physician at this time.
• Copies of all previous U.S. immigration documents covering all periods of stay in the U.S. This includes but is not limited to: Forms I-20 if you held F-1 status, EAD cards, Forms IAP-66 if you held J-1 status, previous nonimmigrant petition approval notices, and copies of I-94 cards.
• Complete copy of your current passport including a copy of your current Form I-94.
• 8 USCIS-style photographs.
• Complete criminal records, if applicable. Please contact Kuck Casablanca, LLC immediately if you have ever been arrested, indicted or convicted in any country, as this may have an effect on your eligibility for permanent residence.

If you do not already have a social security number, you can apply for one at the U.S. Social Security Administration (SSA) office. If you hold nonimmigrant visa status that allows you to work in the U.S. (e.g., H-1B), the SSA will issue a social security card which indicates that you are authorized to work with USCIS authorization only. Your dependents will not be issued SSNs, but they can apply for a federal identification number at a local IRS office.

For more information about applying for a social security number and office locations, you can visit the SSA website at www.ssa.gov.

All nonimmigrant visa categories will allow your spouse and children (under 21) to enter the United States and to live here lawfully as dependents (derivatives) to your status. For example, an L-1 visa holder may bring his wife and children under L-2 status. An H-1 visa holder may bring her husband and children on H-4 status.

Spouses of L-1 and E nonimmigrant workers are eligible for employment during their valid stay in the U.S. They can apply for Employment Authorization Document (EAD) with USCIS. The process takes about 90 days.

However, other nonimmigrant visa categories do not allow your spouse or children to work in the United States while they are here as dependents. Only the principal visa holder is eligible to work in the U.S. This is true for the most common visa classifications such as H, O, P, and TN.

Your dependents may be eligible to work if they qualify for a nonimmigrant visa category (most typically H-1B), and can locate a U.S. employer willing to act as a sponsor. In this case, the employer can file the appropriate petition with the USCIS to grant your family member the proper nonimmigrant visa category. Upon approval of a change of status, your family member will be authorized to work.

Immigrant Visa Applicants

If you and your family process your permanent residence application through consular processing abroad rather than adjustment of status in the U.S., your spouse and children will not have work authorization until the permanent resident visa is issued by the U.S. consulate and your family members enter the U.S.