Attorney Q&A Series: The green card process
You ask, we answer. In this installment of our attorney Q&A series, we’ve enlisted Karen Gillespie, an attorney from Global Immigration Associates (VISANOW’s exclusively retained law firm) to answer some of the most pressing green card process questions, collected from the attendees of our recent How to Master the Green Card Process webinar.
Sponsorship process
What is the process for sponsoring green cards for less-popular visas, such as O-1 Individuals with Extraordinary Ability or Achievement and P-1 Internationally Recognized Athlete or Group?
Karen Gillespie: Generally, someone on an O or a P visa has several potential options for green card sponsorship. If they qualify as an “extraordinary individual” they can apply for an EB-1 Priority Worker green card. The bar for an EB-1 green card is higher than the bar for an O or a P visa — so it’s not guaranteed that the individual is eligible for an EB-1. They may need to apply under the EB-2 Advanced Workers or EB-3 Skilled or Other Workers categories and go through the PERM Labor Certification process.
What’s the estimated time frame for the EB-1 green card classification?
KG: The EB-1 is very fact-specific and requires a document-intensive filing to prove the credentials of the sponsored individual. There are three subcategories of the EB-1 green card and the timing varies even between those three subcategories.
Apart from the time it takes to gather documents and craft a support letter for the EB-1, once filed, U.S. Citizenship and Immigration Services (USCIS) takes anywhere from seven to 10 months to process the I-140 Immigration Petition for Alien Worker application for an EB-1 case with regular processing. It could be much longer if USCIS issues a Request for Evidence asking for additional documentation to prove the beneficiary’s qualifications.
Can language be a requirement for a job, or is that considered discrimination?
KG: Fluency in a particular language may be legally required by the company if it is a business necessity. But the employer must prove a legitimate business reason for the requirement. For instance, if your company publishes travel brochures in many languages and you need an editor to work on your Portuguese brochure department, then it’s reasonable to expect qualified candidates to be fluent in Portuguese. However, if your company does business with some French entities and is looking for a new sales manager, it would be difficult to prove that only someone fluent in French can fulfill that role.
Education requirements
What counts as an advanced degree?
KG: An advanced degree generally means any degree earned beyond a U.S. bachelor’s degree. A master’s degree, Ph.D., J.D. and M.D. are examples.
Does an employee’s years of experience on the job count toward the five-year experience and bachelor’s degree requirement under an EB-2?
KG: An employee may use experience gained with the sponsoring employer only if his or her past roles with the sponsoring company were substantially different from the green card role. For instance, if an employee was hired as a software developer a few years ago and the company now wants to sponsor him or her for a green card as the manager of software development, the employee would likely be able to use that previous experience because it would differ substantially from the new managerial role. However, if the original role was “software developer I” and the green card sponsored role is “software developer II” this is likely not enough of a distinction to allow that past experience to be counted.
How can we verify that a potential candidate’s foreign education is equivalent to U.S. educational requirements?
KG: If a candidate was educated outside the United States, they will need a professional education evaluation service to review their diploma, transcripts and possibly employment history to verify he or she has the equivalent of a U.S. degree. There are many evaluation services available in the United States. Your immigration service provider may also have a relationship with a particular vendor.
Supporting documentation
What are the documents required for someone who is applying under EB-1 as a researcher?
KG: This is, as with any EB-1 case, very fact-specific. The employee must prove they have outstanding research abilities. Generally this is done through past publications, education, etc. The employer must also prove it employs at least three other full-time researchers. This can be done with an affirmative letter from the company and by providing the resumes and/or paystubs of the other employees.
If employment verification letters from past employers don’t contain job descriptions, can they still be used as proof of employment history?
It is certainly preferred that the official experience letter from the past employer contain a description of the employee’s past employment rather than just dates of employment. USCIS and/or the Department of Labor may request additional information or deny a case if the employee has not provided enough qualifying experience. The best practice is to ask the employee to get supplemental letters from a former co-worker or manager if the official company letter does not contain any details of their employment. Generally, the combination of the official discharge letter and a co-worker or manager’s letter is enough to prove qualifying experience.
Filing fees
Can the employee pay for the premium processing fee when filing Form I-140?
KG: Yes, an employee may legally pay the premium processing costs for an I-140 filing. In fact, there is no legal prohibition on an employee paying any or all of the costs associated with an I-140 filing.
Work authorization
How long does it take to submit and get an Employment Authorization Document (EAD)?
KG: The actual processing time from filing an EAD application (Form I-765) to receiving the card is approximately 90 days. But if the EAD card is based on a pending green card application, then there may be months or even years of processing time before an employee qualifies for an EAD card.
Sponsoring an H-1B Worker in Specialty Occupation visa petition? Read our Attorney Q&A Series: the H-1B application process for tips.
Originally published at www.visanow.com on April 25, 2016.
