Immigrant Visas: An immigrant visa allows one to immigrate to the U.S. permanently. US immigration laws established three main categories (called preferences): family-sponsored, employment-based and diversity visa program. There is a numerical limit on foreigners immigrating to the United States for each category: family-sponsored preference: 226,000 per year and employment-based preference: 140,000 per year. Immediate Relatives, i.e. spouses and unmarried children, of United States citizens are not subject to direct numerical limitations. Section 202 of the Immigration and Naturalization Act (INA) also sets an annual per-country limitation of 7% of the total annual family sponsored and employment-based preference, meaning visa issuances to any single country may not exceed this cap. In most cases, when one is eligible for some kind of immigrant visa or permanent resident status (green card), his or her immediate relatives are also eligible for similar visas or green cards as accompanying relatives.
There are five categories under the yearly 140,000 employment-based immigrant visas. Almost all Clemson University sponsored visas fall within first three categories, i.e. employment first preference (EB-1), employment second preference (EB-2) and employment third preference (EB-3). Under the EB-1 category, a labor certification is not required. Additionally, occupations listed on Schedule A also do not require labor certifications. However, a labor certification from the U.S. Department of Labor (DOL) is required for EB-2 (unless it is waivered based upon national interests) and EB-3 categories. To acquire a U.S. lawful permanent status (commonly called green card) based on your employment at Clemson University, a Clemson employee's case will generally undergo three basic steps, i.e. 1) labor certification application, 2) immigrant visa petition and 3) adjustment of status. You can find Clemson University's policy guidelines for sponsoring LPR petitions at our Permanent Residency Petition page.
The procedures for an employer to sponsor a labor certification application is mainly governed by a DOL regulation published on December 27, 2004, call Program Electronic Review Management (PERM). The DOL regulations require Clemson University to do the following before a labor certification can be filed:
The Secretary of Labor must certify a labor certification application if (1) there are no able, willing and qualified U.S. workers available to fill in the position being offered to the alien in the area of intended employment, and (2) employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The PERM also clarified the circumstances under which a Special Recruitment, formerly called Special Handling can be pursued. Under PERM, when the employer selected the alien for a teaching position, such as professors, pursuant to a competitive recruitment and selection process for which the alien was found to be more qualified than any of the U.S. workers who applied for the job and the application is field within 18 months after a selection was made. Please note, to qualify for special recruitment, Clemson University must have placed a PRINT ADVERTISEMENT in a national professional journal. The benefit for special recruitment is that even if there are minimum qualified U.S. workers who are willing, able to take the job, a labor certification application is still approvable if the alien was the best qualified candidates among all of the applicants. In contrast to "regular labor certification application," one must document that there are no minimum qualified U.S. workers who are willing and able to take the job.
For current PERM processing time, please click here
Once a labor certification has been certified by DOL, Clemson University must file an immigrant petition, I-140 on behalf of the employee listed on the labor certificate. Note filing of I-140 or even approval of I-140 does not give one the right to stay or the right to work in the U.S. One must stay and work for Clemson University based on other approved petitions, such as an approved H-1B petition. Most Clemson sponsored immigrant petition fall under the following five categories.
Aliens of extraordinary ability fall within the employment-based first preference. They are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." The term "extraordinary ability'' is defined at 8 CFR §204.5(h)(2) as "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''. Such evidence must include evidence of a one-time achievement (i.e. a major internationally recognized award) or at least three of the following
Outstanding professors and researchers also fall within the employment-based first preference. This category is for professors and researchers who are recognized internationally for their outstanding academic achievements in a particular field.
To qualify as an Outstanding Professor or Researcher, one must meet the following basic requirements:
In addition, evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:
A National Interest Waiver (NIW) petition falls into the employment-based second preference category. Employment-based second preference petition requires a job offer and an approved labor certification is required. However, this requirement can be waivered if the waiver is in the "national interest" of the U.S. (NIW). Since the requirement of a job offer is waived, an individual, even if he/she has no employer, may file an NIW petition on behalf of himself/herself, while a U.S. employer may file an NIW on behalf of the alien as well.
To be approvable, an NIW petitioner must be able to demonstrate that 1) he or she is seeking work in an area of substantial intrinsic merit to the US, 2) the benefit from the proposed activity will be national in scope, and 3) such national interest would be adversely affected if a Labor Certification were required.
An I-140, Immigrant Petition for Alien Worker can be filed only if a labor certification application has been certified by DOL. Since this is a labor certification based I-140 petition, the priority date is the date Department of Labor received Clemson University's PERM application.
For current I-140 processing time, please click here.
One can file Adjustment of Status application, I-485 only if an immigrant visa number is immediately available. If an immigrant visa is available at the time of filing I-140, the application to adjust status can be filed simultaneously with the Form I-140. If a visa number is not immediately available, the applicant must wait until his or her availability number has been reached. The immigrant visa allocation is based on your birth place. U.S. Department of States (DOS) publishes a monthly Visa Bulletin, which summarizes the availability of immigrant numbers. If your priority date is on or before the date listed on the Visa Bulletin, an immigrant visa is available to you immediately. Your priority date for the immigrant visa can be found on I-140 filing Notice of Action. If a labor certification was filed on your behalf with the DOL, the priority date is the date that the DOL received the labor certification application.
If an employee has dependent family members, the dependent can also file adjust status application. In addition, both employee and dependent family member(s), can file an employment authorization and travel document applications without paying additional filing fees.
For current I-485 processing time, please click here.