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Immigration Items and Issues of Special Interest

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EMPLOYMENT-BASED GREEN CARD APPLICATION
  1. Multinational Executive or Manager (EB-1)
  2. RIR-Skilled Worker (EB-3)
  3. The DOL’s PERM Rule
  4. I-140/I-485 Filings


1. Multinational Executive or Manager (EB-1)


a. General

For Japanese transferees in the U.S. seeking to obtain permanent residence, the “ multinational executive or manager ” category is a very practical vehicle, as the entire process can normally be completed in considerably less than 2 years.

The major timesaving factor for the multinational executive/manager is that qualified multinational transferees are exempt from obtaining labor certification from the Department of Labor. Labor certification, which is required for certain other employment-based immigration visa applicants, can take more than 2 years in New York .


b. Requirements

To qualify as a multinational executive/manager , the individual must be employed with an organization that has commonality of ownership in an executive or managerial capacity . That means that the transferee must have been employed in Japan or in another foreign country at a parent, subsidiary or affiliate of the petitioning U.S. entity for at least one of the past 3 years.

The regulation allows deduction of the years a transferee has worked in the United States for the related entity under the various categories of business visas such as Es, Ls or Hs. For example, an individual employed in the U.S. by a U.S. subsidiary or affiliate for ten years under an E-1 or E-2 visa would still qualify, as long as he had the requisite employment of one in the 3 years before his initial entry into the U.S. as an E visa holder.

The regulations require, in addition, that the transferee demonstrate previous employment abroad in an executive or managerial capacity, and that the position assumed or to be assumed at the U.S. company is also in an executive or managerial capacity .

 


2. RIR?Skilled Worker (EB-3)

The major hurdle for aliens seeking employment-based permanent residence in the U.S. has traditionally been the inordinate amount of time it took to obtain a labor certification from the U.S. Department of Labor (DOL). The traditional processing is long and cumbersome; the completion of the labor certification phase alone can take up to 3 to 4 years . Fortunately, several years ago the DOL implemented a major overhaul of the labor certification process, allowing the procedure to be “fast-tracked” under certain circumstances. If an occupation is classified by the DOL as a “shortage occupation” (i.e., there are not enough qualified U.S. workers to fill these positions), then the procedure may be fast-tracked under the “reduction-in-recruitment” option (more popularly known as “RIR”).

The most important consideration in the decision by the DOL to treat a case as an RIR rather than a traditional case is the adequacy of recruitment. Normally, 2 advertisements placed in publications of general circulation in the job location plus one ad placed on the Internet will suffice. The DOL closely examines the employer's recruitment efforts, and if they believe that the employer has established a “pattern” of good faith recruitment within the preceding 6-month period without successfully finding qualified U.S. workers, a Labor Certification should be granted.

Although the DOL regulations state that recruitment for RIR cases must be accomplished within a 6 month period prior to the initial filing of the labor certification application, most DOL regions throughout the U.S. will accept filing after only 2 or 3 months of advertising.

The DOL recognizes numerous occupations as shortage occupations and, therefore, qualified for RIR processing and approval of a labor certification. Foreign specialty cooks (such as Japanese cooks or sushi chefs) and teachers are considered shortage occupations and are usually readily approved as RIRs. Mechanical Engineers, Actuaries, Occupational Therapists, Chemists, and Aeronautical Engineers are also considered shortage occupations in the U.S. job market.

In addition, certain positions may be considered for RIR processing and approved even in cases where the occupation is not in the “shortage” category, if fluency in a foreign language is required to properly perform the job duties. For example, consider a “researcher” who must read original source material in the Japanese language, a translator (Japanese/English) or a bilingual secretary with a company in which the Japanese language is a business necessity. Accountants, librarians, editors, engineers, importers, economists, graphic and architectural designers, teachers, administrative assistants, and passenger traffic agents for Japanese travel agencies may be also considered as “shortage occupations” under the foreign language criterion. However, in such cases the employer must clearly establish the need for foreign language fluency in order to prove that the language requirement is not being used merely to disqualify American workers.

Despite the downturn in the American economy, RIR processing by the DOL continues (for now) as it did in better economic times. However, the DOL may soon remove some occupations, particularly in the IT industry, from the “shortage occupation” category. Therefore, the placement of additional ads beyond the minimum number referred to above may prove wise.

As it can still take up to 4 years for traditional processing of labor certifications, it makes little sense to submit labor certifications without an RIR processing request.

 


3. The DOL’s PERM Rule

The U.S. Department of Labor recently published a proposed rule to replace the current labor certification program with an attestation and audit system to allow for the quick certification of permanent employment cases. The “Program Electronic Review Management System,” referred to as PERM , could provide relief from the labor certification backlog; however, the proposed rule also contains several unwelcome provisions that would make it considerably more difficult to obtain a labor certification as compared to the traditional and RIR procedures.

The proposed rule changes some long-standing policies, including the employer's ability to use the “business necessity” standard as a justification for job requirements in excess of those the government considers normal. Under both the traditional and RIR procedures, the employer is able to use business necessity in order to justify the need for a foreign language, even in cases where the DOL does not consider a foreign language a normal requirement for the position. Eliminating the “need” for the Japanese language would open the job offer to many more qualified U.S. workers, thereby allowing the DOL to deny the certification on the grounds that U.S. workers are available.

PERM , initially introduced in 1999 and originally scheduled to commence in April of 2003, has been postponed until October of 2004. There was a rumor that it would be cancelled completely , allowing the DOL to continue its current labor certification program. However, the DOL has been granted a budget request to finance its PERM regulation, so this program may shortly become a reality.

 


4.I-140/I-485 Filings

 a. General

Upon receipt of a Labor Certification from the U.S. DOL, the employer may petition (I-140) for a skilled worker using the Third Employment-Based Immigrant category (EB-3). In addition to the labor certification, the petition must also be accompanied by evidence that the alien meets the minimum educational training or experience required (2 years prior experience, a bachelor's degree, or a combination of education and experience). The company must provide their financial statements, tax returns and/or Forms W-2. Companies employing more than 100 employees in the U.S. may provide a letter from their CPA or corporate treasurer instead of submitting their financial statements or tax returns.

Upon approval of his I-140, a Japanese alien who is legally in the U.S. may apply for permanent residence under Section 245 at an USCIS office with jurisdiction over the alien's place of residence, or at the American Embassy in Tokyo . Under current regulations the I-140 and I-485 may be filed concurrently.


b. Change of Employer

The USCIS recognizes that prospective immigrants face long delays in the adjudication of I-485s, and will permit an alien to change employers 6 months after the filing of the I-485. The new employer may be anywhere in the U.S. ; however, the position with the new employer must be in the same field.

In cases where an I-140 and I-485 are filed concurrently, it is not clear if the alien may switch employers 6 months after the concurrent filing.