PERMENENT RESEDENCY WORKSHOPS

UNIVERSITY OF TOLEDOHuman Resources

Introduction to The Permanent Residency (Green Card) Process

Introduction to Permanent Residency (Green Card)

ObjectivesOutline “Basic” PR ProcessRole of Special Counsel (AG appointed)UT ProcessPR Categories – MUST qualify/fit into onePR Timing and BacklogsSpecial Considerations

PR Process: OAG & Special Counsel

For EACH new case, the Ohio AG’s Office must approve the use of Special Counsel – this can take timeONLY Special Counsel assigned by OAG can represent the UniversitySpecial Counsel is paid directly by OAG and UT reimburses OAG, therefore applicant cannot pay for PERM themselves – this differs by state and Ohio does not allow

The Three“Basic”PR Steps(can take 1-3 years to complete the cycle)

Phase I:ETA-9089 Labor

Certification(DOL)

Phase III:I-485

Application to Adjust Status(USCIS)

Phase II:I-140 Immigrant

Visa Petition(USCIS)

Phase I: Labor Certification

Petition initiation by UT sponsor dept.Assessment and prioritization

Attorney General -> Special Counsel Appt.

Prevailing wage determinationApplication ETA 9089

Approval ETA 750

Phase I: Labor Certification

MUST demonstrate that the alien was the most qualified applicant for the position

via competitive recruitment reportNationally advertised in PRINT

Employer must pay prevailing wageReviewed by Federal Department of Labor (DOL)

Note: this is different from the H1B prevailing wage determination

PR Process: Phase II

Special Counsel reviews all materials and submits I-140 filing with USCIS, ONLY IF the case has high probably for success based on case assessment

Process proceeds with legal guidance from Special Counsel

This is the length part of the process

PR Process: Phase III

Applicant files I-485 to adjust status to permanent residentSpouse/dependant packages submitted for filingCan be filed concurrently with I-140 provided applicant is not from country subject to backlog

Role of Special CounselAttorney General of State of Ohio

Special Counsel appointment – Mr. Oscar Budde of Perez & Morris LLC – ONLY approved special counselNO other attorney can sign documents on behalf of the University of Toledo

Case AssessmentMr. Budde will assess case and advise as to whether PR can be successfully pursued, and categoryUT will not pursue PR unless the case is viable as determined by Special Counsel

UT Process- PERM SponsorshipForms to be completed by sponsoring college/department and applicant

http://humanresources.utoledo.edu/employment/hb1visas.aspDeans Approval & Sponsorship FormPR Applicant Information FormPR Required Information & Documentation Materials

Once ALL forms and documents are assembled, submit to HR for finalizationHR will ship to P&M for INITIAL ASSESSMENTMr. Budde will then provide an assessment of viability of the PR case, ONLY viable cases will be pursued

PR Categories Used at UT

PR sponsorship at UT is generally limited to faculty and post doctoral research staff, general categories of sponsorship include:

• EB-1 Priority workers (no labor certification required)

• EB-2 Advanced degree holders (labor certification required except for national interest waivers)

EB-1 “Priority Workers”

Two primary types of EB-1 priority workers used at UT:

EB-1(a) Aliens of Extraordinary Ability• “Einstein”

EB-1(b) Outstanding Professors and Researchers• “Internationally Recognized”

EB-1(a): Aliens of Extraordinary Ability

Most selective categoryDoes not require permanent job offerInternationally recognized expertWell established careerMeet at least 3 out of 10 criteriaVERY HARD TO QUALIFY

EB-1(a): Aliens of Extraordinary AbilityMust satisfy at least 3 of criteria below:

Receipt of a lesser nationally or internationally recognized prize for achievement in fieldMembership in associations in field that require “outstanding achievement” of their membersMaterial published about applicant in major trade publications or other major mediaApplicant serves as a judge of others in field either individually or on a panelOriginal, scientific, scholarly, artistic, athletic, or business-related contributions of major significance in fieldAuthorship of scholarly articles in fieldDisplay of work in exhibitions or showcasesPerforming a critical or leading role for organizations that have a distinguished reputationCommanding a high salary in fieldCommercial success in the performing arts

EB1(b):Outstanding Professors/Researchers

Applicant must meet following requirements:

At least 3 years of experience in teaching or research in the academic fieldBe in a permanent positionSatisfy at least 2 of 6 requirements

HARD TO QUALIFY

EB1(b):Outstanding Professors/ResearchersSix Requirements

1. Received of major prizes or awards for outstanding achievement in the academic field

2. Member of associations in the academic field that require outstanding achievements of their members

3. Published material and professional publications written by others about applicant’s work in academic field

4. Participation as the judge of work of others in same or similar academic field

5. Original scientific or scholarly research contributions to the field

6. Authored scholarly books or articles in academic field

EB-2: Holders of Advanced DegreesAvailable to:

Professionals with advanced degrees

Persons with exceptional ability in sciences, arts or business

Labor certification generally requiredSubject to CBA with AAUP

If faculty, receives “special handling” labor certification for higher education faculty Most commonly used at UT***Optional Special Recruitment (OSR)

17 months from date of offer letter!!• OSR = 18 months – 1 month for mandatory posting

EB-2: National Interest WaiversPart of the EB-2 immigrant visa categoryLabor certification may be waived based on grounds of national interestDoes not require permanent job offerNo definition of “national interest” . . . . Must meet following requirements:

Applicant must seek employment in an area of “substantial intrinsic merit”The proposed benefit has to be national in scopeThe foreign national must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications

VERY, VERY HARD TO QUALIFY (haven’t seen one yet . . . .)

PR Timing IssuesCan be filed concurrently with H1B filingFor fastest/best processing filing should take place within 17 months of date of offer letter using the EB-2 “Advanced Degree” category

(OSR = 18 months – 1 month)

Drop-dead deadline for other PR categories – MUST file before reaching end of year five of H-1B total time to allow sufficient assessment and filing time (this includes ALL prior H1B time)

Some “expedited” services are available, however, with backlogs they are very unpredictable and no guarantees can be made

PR Backlogs

EB-1 and EB-2 visa backlogs for applicants from India and China

Currently substantial delays in processing PR application

Current delays are unclear pending October 2007 Advisory Letter from USCIS

PR Special Considerations• Process is initiated by department/employer not employee• Employee is responsible for ensuring that ALL required

documentation is obtained and forwarded to Special Counsel• Employee is responsible for the accuracy of the information,

the results of inaccurate information and educating themselves regarding the process

• Employee and sponsor department must utilize UT’s assigned Special Counsel (do not obtain outside counsel)

• For best probability of success, the process should be initiated within 17 months of date of offer under EB-2 “Advance Degree” OSR category

• Determination as to category under which filing most likely to succeed is made by Special Counsel – we do not take chances

• There is never a guarantee of sponsorship nor subsequent success either express of implied at any time to any employee or prospective employee.

• No hiring offers should EVER be made promising to sponsor or obtain PR status. There are simply too many variables and situations.

Travel Outside U.S. During PR Process

Applicant or dependents may travel outside and reenter the U.S. provided they…

Have valid I-94 stamps in their passport, and have valid H-1B or H-4 visa status (passport can expire prior to H1-B visa status)Or use I-131 “Advance Parole” documentsHave no violations or are out of status

If unsure, do not leave the US, may not be allowed to return

Questions?

Resources

U.S. Department of Statehttp://travel.state.gov/

Citizenship & Immigration Services (USCIS)http://www.uscis.gov/portal/site/uscis

TN Visas

http://travel.state.gov/visa/temp/types/types_1274.html