Sponsoring an Employee for Permanent Resident Status: Part II

What does the petition do for my employee?

Filing a petition shows that you have the intent to hire the employee upon the approval of the petition. By proving that you will have an employer-employee relationship and that the employee has the necessary qualifications for the job, you provide the employee with a place in line among others waiting to immigrate based on the same kind of EB visa category. When the foreign national employee reaches the head of the line, he or she may be eligible to apply to immigrate to the United States.

The foreign national’s place in line, known as a “priority date,” will be based on the date you file the labor certification with DOL or, if a labor certification is not required, the date your petition is filed with USCIS. For this reason, there is an advantage to filing as soon as you are certain that you wish to permanently employ the foreign national.

How do I file for a current or prospective employee?

You need to determine if the prospective or current employee meets the criteria of one of the four preference categories shown above.

Then, the process begins as follows:

•                      For category EB-1, file a Form I-140 with USCIS.

•                      For categories EB-2 and EB-3, first file a labor certification with the Department of Labor (DOL).

•                      Then with the approved labor certification, file a Form I-140 with USCIS. Note that, for category EB-2, the requirement for labor certification has been waived for foreign nationals who qualify for a national interest waiver.

•                      For category EB-4, file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with USCIS.

Family of Refugees & Asylees

If you entered the United States as a refugee within the past 2 years or were granted asylee status within the past 2 years, you may petition for certain family members to obtain derivative refugee or asylee status.

You May Petition for the Following Family Members:

• Spouse 

• Child (unmarried and under 21 when you first applied for asylum or refugee status)

Eligibility Criteria

• As the petitioner, you must be a principal refugee or asylee. This means that you were granted refugee or asylee status directly and did not obtain it through a relative.
• You entered the United States as a refugee within the past 2 years or were granted asylum within the past 2 years.
• You remain in refugee or asylee status or have become a permanent resident (received a green card). If you have already become a U.S. citizen through naturalization, you cannot petition to obtain derivative refugee or asylee status for a relative. However you may still be able to help family immigrate to the United States.
• The family relationship had to exist before you came to the United States as a refugee or were granted asylum: 
• If you want to file for your spouse, you had to be married before you entered as a refugee or were granted asylum.
• Your child had to be conceived (this means the mother was already pregnant) or born before you entered as a refugee or were granted asylum.

Application Process

File Form I-730, Refugee/Asylee Relative Petition.

USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program

USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB-5 Immigrant Investor Program.

The guidance memorandum update to the Adjudicator’s Field Manual (AFM), clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.

USCIS officers will ensure that the business plan filed with the Form I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.

USCIS also has concluded that certain direct and indirect jobs that would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.