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How Do I Obtain Police Clearance Certificate from India for US Immigrant Visa?

Indian citizens and nationals, and non-Indians living legally in India, who are seeking legal permanent resident status in the US, must obtain an immigrant visa at the US consulate or US embassy nearest to where they live in India.

The immigrant visa process commences when a family member or a US employer submits a petition with the US Citizenship & Immigration Services (USCIS). Once the petition has been approved by USCIS, it is forwarded to the consulate with jurisdiction over your place of residence.

The NVC or the Consulate will schedule your interview at the US Consulate in India, and as soon as the interview is scheduled you receive an appointment letter along with final instructions and a list of the documents to be submitted, which include your birth certificate, marriage record, evidence of financial support, visa photographs, and Police Clearance Certificate.

What is a Police Clearance Certificate (PCC):

"Police Clearance Certificate" is a certification issued by the concerned police authorities covering the whole period of the applicant’s residence in that locality. It also notes whether any time the applicant was arrested, along with the reason for and the nature of each case for which there is an evidence/record..

CASE SCENARIO

Immigrant Rajiv and Raju, brothers, have received notice that their immigrant visa numbers will soon be current, and were advised to gather all the documentation they will need to complete the process. One of the items they discovered they need is a Police Clearance Certificate (PCC). Rajiv has spent his whole life in Hyderabad, but Raju has lived in Singapore and UAE as well. He lived in UAE for 5 months, and Singapore for 18 months. Where does each brother need to get a PCC from?

Since Rajiv has only lived in Hyderabad he will only need to get a PCC from the Passport Office and, since he got his passport last year in anticipation of this moment, the District Police. However, Raju will have to get PPCs from India (both the Passport Office and District Police), the UAE, and from Singapore since he lived outside of India for those 23 months.

Validity of Police Clearance Certificate (PCC):

All Police Clearance Certificates are valid for one year from the date of its issue and it must be valid on the day your visa is issued.

Necessity to Obtain Police Clearance Certificate from India:

Any Indian citizen age 16 or older and currently residing in India, whose passport was issued MORE THAN six months prior to their immigrant visa interview date, should obtain a Police Clearance Certificate from both the nearest Indian Passport Office and the District Police in the area in which they reside. However, if their passport was issued LESS THAN six months prior to their interview date, they only need a Police Clearance Certificate from the nearest Indian Passport Office.

A Police Clearance Certificate is required only if you are applying for your immigrant visa or certain nonimmigrant visas (K and V) at a US consulate or embassy in India. Police Clearance Certificates are not required if you are filing for Adjustment of Status (I-485) within the US

Police Clearance Certificate If Filing For Adjustment of Status in the US:

If you are currently not residing in India, but are applying for adjustment of status in United States, you do not need to obtain a Police Clearance Certificate from India. In that situation, you can obtain Police Clearance Certificate from your nearest Indian consulate. The consulate will complete a Police Clearance Certificate on the basis of a passport check.

Police Clearance Certificate – Where to apply?

Please refer the following table to find out where to obtain the Police Clearance Certificate:

Nationality and Residence	Age	Need a Police Clearance Certificate from
If you are residing in India and your Indian passport was issued within past 6 months	you are 16 years old or older	Passport Office
If you are residing in India and your passport was issued more than 6 months prior to visa application	you are 16 years old or older	1. Passport Office 2. The District Police Office near your place of residence
If you are an Indian passport holder and is staying outside India	you are 16 years old or older	Local Embassy or Consulate confirming you have no criminal record (a statement from Embassy or Consulate is acceptable)
If you are an Indian passport holder and currently resident in India, but has lived in another country (except for the U. S.).	you lived in the foreign country for twelve or more months after reaching the age of 16 years.	1. Passport Office 2. District Police Office serving your place of residence (if the passport was issued more than 6 months prior to visa application) 3. Country of previous residence, if available
If you are a non-Indian immigrant visa holder residing in India	you are 16 years old or older	District Police Office serving the area of your residence

Procedure for Obtaining Police Clearance Certificate from India:

Application Form:

To apply for a Police Clearance Certificate, , you must complete a Miscellaneous Application Form No. 2. These application forms can be obtained from the Passport Office at a cost of Rs.5/- or can be downloaded from their website. The completed application form can be submitted either personally, or through an agent having an identity document from you and an authority letter with your signature. Only one application is required unless otherwise specified by the concerned officer.

Application Fee:

The applicant is required to pay a fee of Rs.300/- along with the application form. This fee can be paid either in cash or by bank draft drawn in favor of the Regional Passport Officer. In case of bank draft, you should write your full name and date of birth on the backside of the bank draft.

Documents Required:

Listed below are the documents required to be submitted along with the application form for obtaining a Police Clearance Certificate:

A valid original passport;

Proof of residence; and

If the applicant has not stayed at the present address for the last one year, a set of 3 completed Personal Particulars Form.

Processing time:

It generally takes 7 working days from the date of application to receive a Police Clearance Certificate.

Conclusion:

The submission of a Police Clearance Certificate is required when applying for an immigrant visa and certain nonimmigrant visas for the US. It is a statement which advises the consular officer of any criminal convictions held against your name, or whether your name is clear. Knowing when you need one, and how to obtain a Police Clearance Certificate, can save you a lot of time and aggravation. It is stressful enough without having to try to figure this out at the last minute.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com/

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EB-1, Employment-based Green Card for Multinational Managers & Executives on L1

With the continued growth of a global economy, many companies are moving their senior personnel around the world to where they are needed the most. This includes transferring managers and executives to the U.S. to lead their company's U.S. operations. Many of these managers and executives contemplate obtaining U.S. permanent residence, a "Green Card," either to minimize the hassles associated with having to renew their nonimmigrant status or simply because they intend to remain in the U.S. and eventually become U.S. citizens. Those that are coming to the U.S. using the L-1A Intracompany Transferee Visa for managers and executives are on a direct track to qualifying for the EB-1C (Multinational Executives & Managers) employment-based Green Card. The EB-1C closely resembles the L-1A nonimmigrant visa in its basic requirements; therefore many people who qualify for an L-1A visa also qualify for EB-1C status without having to undergo the labor certification process.

While the L-1A visa provides an easier path for those interested in filing for permanent residence under the EB-1C category, L-1A status is not a prerequisite for EB-1C eligibility. Moreover, L-1A approval does not guarantee an approval of the EB-1C for the same beneficiary. Rather an approved L-1A simply indicates that the person has met the initial prima facie evidence of being qualified for an EB-1C Green Card.

Comparison of L-1A and EB-1C Requirements

The EB-1C employment-based immigrant visa and the L-1A nonimmigrant visa for multinational managers and executives share the following requirements:

The U.S. petitioner is a parent, subsidiary, or affiliate of a company in another country;

In the three-year period immediately preceding the filing of the petiton, or if the beneficiary is already in the U.S., his or her entry into the United States, the beneficiary must have worked for at least one year overseas with the parent, subsidiary, or affiliated company of the U.S. petitioner;

The main difference between the nonimmigrant and immigrant categories is that the L-1A visa allows persons who were "specialized knowledge" workers in their home country to transfer to the U.S. as managers or executives. In contrast, the EB-1C category requires that the beneficiary’s position at the qualifying overseas company was executive or managerial. In both cases the overseas managerial position had to be more than a first-line supervisor.

L-1B specialized knowledge employees generally do not qualify for EB-1C, unless the petitioner can show that the beneficiary served as an executive or a manager for the company abroad and that the position offered in the United States is "executive" or "managerial." Thus an L-1B can only qualify for the EB-1C Green Card if he/she also qualifies as a manager or executive, in addition to having specialized knowledge.

Let's look at an example of this last situation. John entered the U.S. as an L-1B with specialized engineering knowledge of a bridge building process not in common usage in the U.S. After being here for 2 years the company decided to keep him here on a permanent basis. Since he was a Project Manager in charge of specific bridge projects in New Zealand before coming to the U.S., and he was the West Coast manager for all bridge projects the company had undertaken in the U.S., he was a "manager" both overseas and in the U.S. so qualified for permanent residence under the EB-1C category.

Being and Staying in Business

One additional requirement for both the L-1A and EB-1C is that the petitioning company must be "doing business," as that term is defined by the USCIS, for at least one year abroad and in the U.S. before applying. However, under the L-1A there is a "New Office" exception to this rule, which allows the petitioner to show that the:

U.S. company has secured sufficient physical premises to do business;

Beneficiary meets the one-year continuous employment abroad requirement; and

The newly formed U.S. company will, within one year, "support an executive or managerial position."

The New Office L-1 petition will only be approved for one year. At the end of that first year the company will need to file an extension showing that the business is active,fully operational, and requires a manager or executive. This typically involves showing that the company has expanded its U.S. revenues and has hired additional personnel. The first year for New Office L-1s is a conditional period, after which the company has to show that it is serious about being in business in the U.S. After this extension is approved, only then can the beneficiary pursue an EB-1C Green Card.

Unlike the L-1 visa, the EB-1C Green Card petition does not have an exception for companies that are launching a new office in the U.S. Instead it requires that the U.S. company have been in business for at least one year before the petition is filed. This limits the New Office L-1 beneficiary’s ability to immediately file an EB-1C petition. Those beneficiaries who have come to the U.S. to open a new office must wait until the one year has passed and the first-year extension has been approved.

In addition to the requirement that the company be in business in the United States for one year, the petitioner must also show that the company abroad will continue to operate, even after the beneficiary has been transferred to the U.S. office. This is true in both the EB-1C and the L-1 visa contexts, and is especially true when the transferee is a major force in the success of the overseas company. Under the L-1 visa category, if a company ceases to operate in the foreign country the L-1 visa status is invalidated and the beneficiary must change his status in the U.S. to another classification or leave the U.S. Under the EB-1C category, the halt of operations by the foreign company before the beneficiary obtains their Green Card would lead to USCIS revoking the underlying I-140 and denying the permanent residence application. For these reasons the continuing operation of both the foreign and U.S. offices is an ongoing requirement for both the L-1 and the EB-1C categories.

Conclusion

Qualifying for the EB-1C, Multinational Executives and Managers immigrant visa category is advantageous because no labor certification is required for the beneficiary. Labor certification is a tedious process involving several additional steps. The company is required to conduct test of the labor market through a recruitment procedure to determine if there are any minimally qualified U.S. workers that are “ready, able and willing to fill the position. Since a majority of times the position would be that of a senior manager or executive, such recruitment would neither benefit or be seriously undertaken by the company. The EB-1C category is designed for just this scenario, allowing multinational companies to transfer senior managers and executives to the U.S. with only a job offer, and without a need for the recruitment. However, qualifying for the EB-1C immigrant visa is not a simple task. As outlined in this article, obtaining a prior L-1A approval suggests that the beneficiary will likely also qualify for an EB-1C since the qualifications for the two visa categories are very similar, but it is not a guarantee. The petition preparation for this visa category is quite complex, requiring extensive analysis of the underlying facts. For these reasons, VisaPro highly recommends that anyone interested in pursuing an EB-1C consult a highly experienced attorney who has successfully handled EB-1C immigrant visa petitions in the past.

Despite the complexities of an EB-1C petition, we have successfully helped many managers and executives obtain their Green Cards through this category. We will be glad to help you with the EB-1C process if you qualify. To determine whether you have what it takes, please Register for a Consultation with one of VisaPro’s senior attorneys and we will gladly analyze your qualifications and options in detail.

Also, you can Contact VisaPro if you have questions regarding any other types of employment-based petitions. Our experienced attorneys will be happy to assist you with these as well.

Professors and Researchers: Employment Based Green Card Options - EB-1, EB-2, and EB-3

As with the nonimmigrant status there are several options for professors and researchers that are seeking permanent residence. While each option is designed for specific circumstances, many individuals will qualify for more than one employment based green card category.

Employment Based Green Card Categories for permanent residence in the U.S.

EB-1 Green Card Option: EB-1.2 - For Outstanding Professors and Researchers

Outstanding professors and researchers are individuals that are recognized internationally for their outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years experience in teaching or research in their academic field, and must be entering the U.S. to fill a tenure or tenure track teaching position or a comparable research position at a university or other institution of higher education or private organization.

If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.

Note: The employer must file the petition for an outstanding professor or researcher

(i) Initial evidence Employment Based Green Card Petitions for outstanding professors and researchers must be accompanied by sufficient evidence to show that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following categories:

A.		Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;

B.		Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;

C.		Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

D.		Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

E.		Evidence of the alien's original scientific or scholarly research contributions to the academic field; or

F.		Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

The petitioning employer must also provide evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Any experience in teaching or research gained while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding.

Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien.

Finally, Outstanding Professors and Researchers require an offer of employment as initial evidence in support of a first preference employment based green card petition filed on their behalf. The offer of employment may be in the form of a letter from the petitioning employer (i.e., U.S. university or institution of higher learning or a department, division, or institute of a private employer) stating that the employment is a tenured or tenure-track teaching position or a "permanent" research position in the alien's academic field. The word "permanent", in reference to a research position, is defined as:

"either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination."

If the employer is a private organization it must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

A recent review of modern business practices reveals that most employment agreements for professors and researchers provide that a tenure-track teaching position or comparable research position is terminable "at will," even though both the employer and the employee have the expectation that the employee will continue in the employment for an indefinite or unlimited duration. "Good cause for termination" clauses often are not included in such agreements because they raise numerous legal and business issues for employers.

In determining whether a petitioning employer has established that a research position is permanent, some USCIS adjudicators have focused solely on whether the language of an actual employment contract (if submitted) or the offer of employment contains a "good cause for termination" provision. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment.

PUZZLER

For EB-1.2 researchers and professors, an offer of permanent employment is met when there is intent for ongoing employment. Does an individual whose employment is renewed annually meet the requirement for an offer of permanent employment based upon the mutual expectation the offered employment will be extended on an ongoing basis?

No. In the case of researchers the petitioner must establish that a job is permanent. The regulations require that a petitioner submit evidence that the position is tenured, tenure-tracked or for a term of indefinite or unlimited duration and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination. The mere fact that the petitioner claims that the job may be renewed annually is not sufficient to establish the permanent nature of the job.

EB-1 Green Card Option: EB-1.1 - For Aliens with Extraordinary Ability:

Professors and researchers, or any person on their behalf, may file a Form I-140 petition for employment based green card as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. Extraordinary ability, as defined by USCIS, means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.

(i) Initial evidence

An employment based green card petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award, i.e., the Nobel Prize), or at least three of the following:

A.		Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

B.		Documentation of the alien's 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;

C.		Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

D.		Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

E.		Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

F.		Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

G.		Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

H.		Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

I.		Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

J.		Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales

Note: Not all of the above categories will fit or be applicable to all professors or research positions. If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility

(ii) No offer of employment required

Foreign nationals seeking classification in as persons of extraordinary ability do not need to have an employer in the U.S., i.e., they can self petition. However, the employment based green card petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

Relative advantage of EB-1 Green Card option for Aliens with Extraordinary Ability

The main advantage of the extraordinary ability category, when compared to the outstanding professor or researcher category is that the extraordinary ability alien is not required to be “employed” and may self-petition. Professors and researchers must, however, demonstrate that they are planning to work in their field of expertise. Further, an extraordinary ability alien who was sponsored by an employer may take advantage of an approved immigrant visa petition under this classification if he or she chooses to change employers (without having to rely on the “portability provisions” of AC21), as long as the alien can prove that he or she plans to work in the same field.

Other Employment Based Green Card categories

The EB-2 and EB-3 green card categories are also viable options for professors and researchers who cannot satisfy the eligibility criteria as an outstanding professor or researcher or as an alien of extraordinary ability.

EB-2 Green Card for Professionals with advanced degrees or persons with exceptional ability

The EB-2 Employment Based Green Card classification includes aliens who are members of the professions holding advanced degrees or their equivalent and aliens who have exceptional ability in the sciences, arts, or business.

For purposes of this section “advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.”

In order to be classified as a person having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three of the following:

A.		An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;

B.		Letters documenting at least ten years of full-time experience in the occupation being sought;

C.		A license to practice the profession or certification for a particular profession or occupation;

D.		Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;

E.		Membership in professional associations;

F.		Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations

Note: If the above standards do not apply to the petitioner's occupation, other comparable evidence of eligibility is also acceptable

CASE SCENARIO

Chen is a Chinese national who has a PhD in biological statistics. He has just been offered a tenure track position with a Southern California university to teach advanced statistics and to provide statistical support to their cancer research department. Chen has an extensive resume after only 5 years. He has written numerous articles about biological statistical methods, in fact the methods he developed for his PhD research in the field have been adopted by many and have been praised as some of the most innovative and groundbreaking research presented in years. Chen is also a reviewer for several scientific journals and has written numerous articles in his field. At his last position he was named as one of the members of the development team that received a patent on the work they were doing.

What options does Chen have? Given the strength of his background he should qualify for several categories, including an individual of Extraordinary Ability (EB-1.1), an Outstanding Professor or Researcher (EB-1.2), an individual with an advanced degree (EB-2) using either the university ‘special handling’ procedures or seeking a National Interest Waiver, and clearly as a professional in the EB-3 category.

(i) Labor certification and waiver

EB-2 Employment based green card petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor. The labor certification must outline the minimum requirements for the position and is proof that there are no minimally qualified U.S. workers that are ready, able, and willing to fill the position. Colleges and universities that are seeking labor certification for a professor and certain researchers can take advantage of the “special handling” rules. These rules allow the educational institution to show that the foreign national is more qualified (minimum qualifications do not apply) than other applicants, and document that the alien was selected for the job opportunity in a competitive recruitment and selection process. They can use the recruitment process for the position as long as it was within 18 months of the time the labor certification application is filed.

If you are a worker with an advanced degree or you meet the exceptional ability requirements you may apply to waive the requirement that you have a job offer if such a waiver would be in the national interest. The USCIS established a three part test for the national interest waiver. You must show that:

(1)	the person seeks employment in an area of substantial intrinsic merit;

(2)	the benefit will be national in scope; and

(3)	the national interest would be adversely affected if a labor certification were required

Having met the exceptional ability standard by itself is not sufficient to grant the waiver. The USCIS has held that work such as local pro bono lawyering, teaching in a single school, or providing nutritional information in a localized setting is not sufficient to meet the national criteria.

Additionally, a national interest waiver is not warranted solely to ameliorate a local labor shortage. The petitioner must prove that the benefit his unique skills would provide substantially outweighs the inherent national interest in protecting U.S. workers through the labor certification process. A national interest waiver application must also be accompanied by a completed Department of Labor Form ETA 9089. One of the greatest benefits of the national interest waiver application is that the foreign national, as with the EB-1.1 category, can self- petition.

EB-3 Green Card for Skilled or professional workers:

A category that will not be overly utilized for professors and researchers, but which nonetheless should be considered, is EB-3 Employment Based Green Card for skilled workers, professionals and “other” workers. While eligibility requirements for the EB-3 Green Card classification are less stringent than the EB-1 and EB-2 Green Card classifications, one should be aware that a long backlog exists for visas in the skilled workers, professionals, and “ other” workers category.

The EB-3 Green Card classification includes:

Aliens with at least two years of experience as skilled workers;

Professionals with a baccalaureate degree; and

Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States

Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education. The Labor Certification application states the job requirements, which determine whether a job is skilled or unskilled.

Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.

Other workers are in positions that require less than two years of higher education, training, or experience. However, due to the long backlog, a petitioner could expect to wait many years before being granted a visa under this category.

Conclusion

When it is time to take that final step to permanent residence professors and researchers, and their educational and/or research oriented employers, have several employment based green card options to choose from. They and their counsel must carefully study all the facts of their case to determine which employment based green card categories they may qualify for, and then develop a strategy to reach the ultimate goal – the green card. In some instances the individual will meet the basic requirements for two or more employment based green card categories. In those cases we often recommend that the individual pursue all the options concurrently, but depending on the strength of the application for each option we may suggest that the individual initially seek only the category that they are the strongest in.

In recent cases, VisaPro has used all of the above options in helping clients. If the university completed a competitive recruitment within the past 18 months, and it is likely that the individual will be remaining with that university for sometime, we would usually recommend that they use the “special handling” labor certification rules because it is the surest route. If the researcher is clearly one of the top people in his field, whose services are highly sought after (i.e., they may change employers), then the extraordinary ability petition would get the nod. If that same person is working on research that will substantially impact his field in the future we would probably suggest a National Interest Waiver petition as well. Again, it all depends on the facts of the case.

PERM Labor Certification Process

A permanent Labor Certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA).

The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

PERM Labor Certification Process:

To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005. The PERM System i.e. Program Electronic Review Management System is a program developed by the Department of Labor to replace the then existing Employment based Labor Certification Application.

How PERM works?

The PERM procedures have been designed to expedite the Labor Certification process. It eliminated the two methods of processing in place at the time, the Regular and RIR (Reduction in Recruitment) processes. PERM Labor Certification Process uses automated computer systems to scan attestation forms filed by employers regarding their compliance with all regulatory requirements. However, it is supposed to be a strict and rule-based system, requiring less paper work and cutting down on the time and formalities of collection of documents.

Are all applications covered under PERM ?

The DOL PERM regulation came into effect from March 28, 2005 and is applicable to all applications filed on or after that date. As of March 28, 2005, applications using the old Form ETA 750A/B are no longer accepted. The new applications (ETA Form 9089) are needed to be filed under PERM Labor Certification Process at the appropriate National Processing Center. Only if an employer chose to withdraw an earlier application and re-file the application for the identical job opportunity under the re-file provisions of PERM would a previously filed application be processed under the PERM regulation. Since the backlog of labor certification applications has been cleared ETA 750 can no longer be used to for any permanent labor certification.

Filing of the application

The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications. Applications submitted by mail must contain original signatures. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

Prevailing wage determination

Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC /O* NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

Recruitment steps to be completed before filing

PERM Labor Certification Process requires employers to attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the labor certification application. The employer must recruit under the standards for professional occupations set forth in the regulations if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

CASE SCENARIO

Yumi, a Japanese national, trained as a classical architect has just started with a firm in Seattle. The firm had unsuccessfully been trying to fill the position for over 8 months, including running ads in the local newspapers and in trade journals. The partners are impressed with her work, beyond what they expected. At their most recent meeting they decided to pursue permanent residence for her. After doing some research they find they must complete a labor certification for her before they can file with the USCIS. The rules for recruitment are very specific, however some of the previous recruitment efforts should be able to be used. You will have to determine which efforts can used and which cannot. When looking through the files they bring you, you are thankful that they saved all the resumes that had been submitted throughout the process, and that the interviewers had taken good notes on why each applicant was not qualified. You start putting together a list of the remaining requirements that will have to be fulfilled.

Filing an application online

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

Conclusion

PERM is designed to streamline the labor certification process and reduce processing times. DOL anticipates adjudication of most cases filed under PERM within 45 to 60 days, unless there is a DOL audit and the employer is required to submit additional information, or certain cases may be subjected to supervised recruitment. Thus, it is important that all the statutory guidelines are complied with before filing an application under PERM, to obtain a green card labor certification without any delay.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, L-1, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult attorney.

We also cover the latest happenings on all visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

I-140 Premium Process for Faster EB-3 Green Card Processing

On August 28, 2006, U.S. Citizenship and Immigration Services (USCIS) began accepting Premium Processing requests for EB-3 Green Card Professionals category, (i.e. immigrant workers with bachelor degrees who are members of the professions), and EB-3 Green Card Skilled Workers category, (i.e. immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience). The I-140 Premium Processing was subsequently made available to “other workers” in the EB-3 Green Card category for jobs that do not require two years of education, training or experience on September 25, 2006.

Though on July 2, 2007, USCIS announced the temporary suspension of Premium Processing for Form I-140, after an evaluation of its Form I-140 backlog reduction efforts and increased Form I-140 adjudicative efficiencies, USCIS concluded that as of June 29, 2009 it would reinstate the Premium Processing Service for Form I-140. Hence, Employers may now request faster processing of Form I-140, using Form I-907, Request for Premium Processing Service. Premium Processing is now available to all I-140s except those involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver

What is USCIS Premium Processing?

Premium Processing will allow U.S. businesses to pay a $1,225 in exchange for 15-calendar-day processing of their case.

Under the Premium Processing Service, USCIS has guaranteed petitioners that, for a $1,225 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS is required to refund the $1,225 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

Premium Processing for Form I-129, Petition for Nonimmigrant Worker:

Since 2001, Premium Processing Service has been available for several classifications within Form I-129, including E-1 Treaty Traders; E-2 Treaty Investors; H-1B Specialty Occupation Workers; H-2B Temporary Workers performing nonagricultural services; H-3 Trainees; L-1 Intracompany Transferees; O-1 Aliens of Extraordinary Ability and those performing essential support services; P-1, P-2 and P-3 Performers and Athletes and those performing essential support services; Q international Cultural Exchange Visitors, R-1 Religious Workers, and NAFTA Professionals from Canada and Mexico. Premium Processing Service continues to be available for the designated classifications within Form I-129, Petition for Nonimmigrant Worker.

I-140 Premium Process

Form I-140, Immigrant Petition for Alien Worker, is used to petition USCIS for an immigrant visa based on employment. It is filed to petition for an alien worker to become a permanent resident in US.

Employers seeking to request faster processing of Form I-140, may use Form I-907, Request for Premium Processing Service. If Form I-907 is filed concurrently with Form I-140, you must file both forms at the Service Centre designated as the appropriate filing location on the form instructions. If you have already filed Form I-140 and you now wish to request Premium Processing Service, Form I-907 must be filed with the Service Centre where the Form I-140 is currently pending. You must submit a copy of the Form I-797, Receipt Notice, for your Form I-140. If you have received a transfer notice, you must submit Form I-907 to the transfer location, along with a copy of the transfer notice.

I-140 Premium Processing is available provided that the case does not involve:

A Second Filing of a Form I-140 petition while an initial Form I-140 remains pending;
Labor Certification Substitution Requests;
Duplicate Labor Certification Requests (i.e., cases filed without an original labor certification form the Department of Labor), and;
A Form I-140 petition in which a final decision has been made.

I-140 Premium Processing request may also be rejected if Form I-907 is incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition.

Who can File requesting I-140 Premium Process?

Form I-907 may be filed only by the petitioner or the attorney or representative who has filed a notice of appearance (Form G-28) on behalf of the petitioner. The beneficiary of an I-140 petition cannot seek Premium Processing except in cases where the petition is eligible to be filed as a self-petition (i.e., the petitioner and the beneficiary are the same).

CASE SCENARIO

Ernie, an Australian national, and a highly ranked golfer who wants to immigrate to the US. He believes that he would qualify for Extraordinary Ability based on his ranking, the fact that he has won a number of tournaments (although he has never won any of the majors), and that he has been written about in a number of Australian golf magazines and was featured in a Sports Illustrated article on up and coming young golfers. Ernie is currently participating on tour participating in several PGA tournaments. Since he is traveling quite a bit right now he thinks that using the consular processing route would be best for him. He wants to get the process over with as quickly as possible so that it does not unnecessarily interfere with his being able to enter the US to play golf. With premium processing Ernie can have an answer on the I-140 within 15 days and can then proceed with confidence through the rest of the process.

Version of Form I-907

To verify that your version of Form I-907 is currently accepted by USCIS, you have to compare the ‘edition date’ located on the lower right corner of your Form I-907 to the ‘edition date’ listed on USCIS’ “Request for Premium Processing Service” Form page. Your version of Form I-907 will be accepted if both dates match or if USCIS’ Form page lists a later date, but there is a designation ‘Y’. Your version of Form I-907 will not be accepted by USCIS if a later edition date is listed followed by an ‘N’ designation.

With I-140 Premium Processing, employers will now be able to seek faster processing of Form I-140 for Employment-Based Green Card petitions. Contact VisaPro if you have any questions regarding I-140 Premium Processing Service, Employment-Based Green Cards or need help in filing with the USCIS or Consulates. Our experienced attorneys will be happy to assist you.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Buying An EB5 Green Card

Congress created the employment-based fifth preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter the U.S. to engage in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a ‘targeted employment area.’ Of the 10,000 visas available for this preference category each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas.

The statutory requirements of the EB5 Green Card category are difficult. At most only about 1,000 people a year have immigrated in this category, just one-tenth of the visas available. It is estimated that USCIS approves only about 15 percent of EB5 Green Card petitions.

Statutory Requirements

To qualify under the EB 5 Green Card category, the new enterprise must:

Be one in which the person has invested (or is in the process of investing) at least $1 million (or at least $500,000 if investing in a ‘targeted employment area,’) after November 29, 1990

Benefit the U.S. economy; and

Create full-time employment for at least 10 U.S. workers.

Moreover, the investor must have at least a policy-making role in the enterprise.

Qualified Immigrants

Outside of the investment and employment requisites, the statute does not specifically address who may be a qualified applicant for the green card through investment. The USCIS has precluded corporate or other non individual investors from this category. However, two or more individuals may join to make an EB 5 investment. A single ‘new commercial enterprise’ may be used for investor/employment-creation classification by more than one investor, provided that:

Each petitioning investor has invested (or is actively in the process of investing) the required amount; and
Each investment results in the creation of at least 10 full-time positions for qualifying employees

CASE SCENARIO
Q: Roger, a citizen of Singapore, wishes to establish a business in the US, and wants to use that business to secure a green card. He has $600,000 from his existing business that he can invest and can secure an additional $300,000 to $500,000 if necessary. He has looked at a specialty molding manufacturing mill in Washington state that is in economic trouble. They have lost money over the last 3 years and are close to filing for bankruptcy. They need an infusion of capital to stay open. The mill currently employs 45 people, and located in a rural part of the state. Will an investment in the mill meet the requirements for Roger to get a green card as an investor.		A: Yes. The mill qualifies as a troubled business, it has lost over 20% in value over the last 24 months. Roger just has to purchase the business and maintain the same number of employees to qualify. In addition, since the mill is located in a rural area, a p population of less than 20,000 persons, it qualifies as a targeted area. Depending on the unemployment rate in the area it may also qualify based on that factor. Because the new business is in a targeted area Roger will only have to put a minimum of $500,000 into the business to qualify. For more information keep reading.

The New Commercial Enterprise

There are two basic requirements for showing a new commercial enterprise. First, the enterprise must be ‘new,’ i.e., formed after November 29, 1990. Second, it must be a ‘commercial’ enterprise. Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise. This includes sole proprietorships, partnerships (whether limited or general), holding companies, joint ventures, corporations, business trusts, or other entities publicly or privately owned. However, the term ‘new commercial enterprise’ does not include noncommercial activity, such as owning and operating a personal residence or nonprofit enterprise.

Creating an Original Business — In 2002 Congress eliminated the ‘establishment’ requirement for EB5 investment based green card. Instead of proving that they have ‘established’ a commercial enterprise themselves, investors now need only show that they have ‘invested’ in a commercial enterprise.
Buying an Existing Business — By reorganizing or restructuring an existing business, an investor may create a ‘new commercial enterprise’ and therefore qualify for a visa. The statute and regulations provide little insight into what degree of restructuring or reorganization must be done to establish a new enterprise. The AAO has held that simply changing the legal form of the enterprise does not satisfy this requirement.

Regardless of the forms used to create a new enterprise, the focus of the law is on the creation of at least 10 new employment opportunities. Investments creating a new enterprise but failing to create 10 new jobs will also fail to qualify for EB-5 classification.
Expanding an Existing Business — An investor can also create a new enterprise by expanding an existing business. Only an expansion resulting in an increase of at least 40 per cent in the net worth of the business or in the number of employees of the business will satisfy the visa requirements. This could require the investor to create more than 10 new jobs to qualify for a visa.

The larger the business that the investor expands, the more onerous his or her burden to qualify for a visa under this standard. However, an investor need not show that his or her investment alone caused the 40 per cent increase.
Pooling Arrangements — The regulations specifically allow immigrant investors to pool their investments with others seeking EB5 investor visa. Each investor is required to invest the applicable statutory amount. All of the new jobs created by the new commercial enterprise will be allocated among those within the pool seeking permanent investor visas.

Benefiting the U.S. Economy

The statute requires that investments ‘benefit the U.S. economy’ to qualify the investor for an EB5 Green Card visa or status. The statute provides no guidance on which investments benefit the economy. This silence means USCIS adjudicators are left to their subjective interpretations of the investment and its relative benefits when reviewing the petition.

Arguably, the petitioner has benefited the economy by merely meeting the employment and investment requirements of the visa classification. However, because the statute specifically identifies the ‘benefit’ element as distinct from other components of the visa, it appears that the applicant must independently show that the enterprise, in the conduct of its business, will benefit the U.S. economy.

Therefore, a consulting firm exclusively serving customers abroad with no return benefit to the U.S. economy (other than employing the requisite number of workers), might not support an EB5 Green Card petition. In contrast, showing that the new enterprise provides goods or services to U.S. markets should satisfy this requirement.

Creating or Saving Jobs

To qualify for EB5 Green Card, an investment normally must create full-time employment for at least 10 U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the U.S. Neither the investor nor the investor’s spouse and children count toward the 10-employee minimum. Nonimmigrants are also excluded from the count. The ‘other immigrants’ provision means that conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation or cancellation of removal may all be considered employees for EB5 purposes.

The regulations define an ‘employee’ for EB5 purposes as an individual who provides services or labor for the new commercial enterprise and receives wages or other remuneration directly from the new commercial enterprise. This definition excludes independent contractors.

The Types of Jobs — The jobs created must be full-time. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week, regardless of who fills the position. Job-sharing arrangements, where two or more qualifying employees share a full-time position, will also serve as full-time employment if the hourly requirement per week is met. Job-sharing does not include combinations of part-time positions even if when combined such positions meet the hourly requirement per week.
Where the Jobs Must be Located — When enacting the EB5 program, Congress took an affirmative step toward creating jobs in the geographic areas that need them most. The statute sets aside 3,000 of the approximately 10,000 EB-5 investor visas available annually for foreign citizens who invest in ‘targeted employment areas.’ The statute defines a ‘targeted employment area’ as a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.
When the Jobs Must Exist — The law is unclear about when new jobs must exist. The statutory language is prospective and therefore does not require jobs to exist at the time of initial investment or before the I-526 petition is filed.

A petitioner may support a petition with a comprehensive business plan demonstrating a need for at least 10 employees within the next two years. The business plan need only indicate the approximate dates during the following two years when the employees will be hired. The temporary vacancy of a position during the two-year conditional period does not disqualify an investor, as long as good-faith attempts to re-staff the position are made.

Conclusion

The EB5 Green Card is one of the most complicated categories in immigration law. Moreover, the four 1998 precedent AAO decisions and subsequent nonprecedent decisions have made it even harder to obtain approvals of EB5 petitions. Investors must discard normal investment opportunities in favor of investments structured to meet the unrealistic requirements of the precedent decisions. In many cases it may be more practicable for investors to come to the U.S. through other visa categories such as the E-2 investor, L-1 intra company transferee, or EB-1-3 multinational executive or manager routes.

Contact VisaPro if you have any questions regarding any type of employment based petitions. Our experienced attorneys will be happy to assist you.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

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