Paths to Permanent Residency

 Terminology

• MSU- Montana State University
• USCIS- United States Citizen and Immigration Services
• OIP- Office of International Programs (MSU)
• OIE- Office of Institutional Equity (MSU)
• LPR- Legal Permanent Residency (green card)
• AOS- Adjustment of Status (to Permanent Resident)
• I-140-Immigrant petition for alien worker
• I-485- Application for adjustment of status to permanent residence
• I-131-Application for travel document
• I-765- Application for employment authorization
• EB- Employment-Based
• Beneficiary- Foreign worker
• Petitioner- Employer
• RFE- Request for Evidence
• OR/P- Outstanding Researcher/Professor
• LC- Labor Certification

Table of Contents

• Permanent Residency 
• Who is Eligible for LPR
• Initial Steps to LPR
• Form I-140
• Outstanding Researcher/Professor
• Advanced Degree Professionals- Labor Certification
• Filing I-140 with Approved Labor Certification
• Fees
• Priority Date
• Other Non-Employment-Based Options
• Overview of I-485 Petition

Permanent Residency Immigrant Status

Permanent Residency, or the "green card", provides many of the rights and privileges of U.S. citizenship, most importantly the ability to live and work in the U.S. indefinitely. U.S. permanent residents remain citizens of their own country and travel on their countries' passports. After five years, a permanent resident who received the "green card" through an employment-based petition may apply for U.S. citizenship, but is not required to do so.

Immigrants are issued an Alien Register Receipt Card commonly known as the “green card”, as proof of their status.

 Who will be eligible to apply for Legal Permanent Residency (LPR)

1. First, the beneficiary must have a valid H-1B visa that has at least two years left before expiration.  
2. Second, Montana State University files employment-based immigrant visa petitions for international scholars who have the support of their campus department and hold permanent academic positions.  This specifically excludes post-doctoral fellows.

Note: Teaching and research faculty in tenure system positions constitute the vast majority of immigrant visa petitions.

Note: A person who has engaged in unauthorized employment or who has been out of status at any time while in the U. S. may not adjust to an immigrant status within the U. S.

 Steps to Legal Permanent Residence (Green Card) via Employer Sponsorship

First, contact Katherine Knight at the Office of International Programs in order to discuss options.   She will be able to recommend which path is most appropriate for the university and the employee. 

The two paths to green card that MSU is able to sponsor for qualified foreign workers, are the Labor Certification through the Department of Labor and Outstanding Researcher through the USCIS.  

Note: If neither the labor certification nor the outstanding researcher categories are appropriate, then the employee may pursue alternative routes with non-employment based petitions-some of which are listed at the end of this document.

 The Form I-140- Immigrant Petition for Alien Worker

The I-140 petition accompanies an application that can lead to Adjustment of Status (AOS)--such as the employment-based (EB-1) Outstanding Researcher or Labor Certification (EB-2).   After approval of the I-140 by the USCIS, then an Application for Permanent Residence (I-485) may be filed to the USCIS or to a U. S. Consulate overseas.  The preparation and filing for an immigrant visa is the joint responsibility of the hiring department (employer) and the alien worker (beneficiary). 

Responsibilities of MSU (petitioner)

Note: It is an MSU requirement that these petitions be prepared and filed by the university.   An outside attorney is allowed to become involved only for extenuating circumstances and only with approval of MSU Counsel.

Note: Fees for the I-140 related petitions will be paid for by MSU as long as the petition is processed by MSU and not by an outside attorney.

Responsibilities of the Foreign Employee (beneficiary)

After the approval of the I-140 petition, an Application for Change of Status to Permanent Residence (I-485) may be filed by the beneficiary-- normally without the assistance of an attorney.

Note: The fees connected with the Form I-485 will be the responsibility of the beneficiary (foreign worker).

Application for Immigrant Status

There are two employment-based (EB) options that MSU may sponsor for obtaining immigrant status for an employee. 

(1) Outstanding Researcher/Professor   (OR/P)  Priority worker category (EB-1 )

 Eligibly Criteria

The “Outstanding Professor or Researcher” category is available to professors and researchers who are recognized internationally as being outstanding in a specific academic area, with an established, peer recognized research record.  The department must initiate this process and be fully supportive of it.

To be eligible for this Category, the Researcher/Professor must have

• An offer of employment for a tenured or tenure-track position or a comparable “permanent” research position. The U.S. Citizenship and Immigration Services defines a “permanent” position as one that is “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.” Visiting faculty, non-tenure track [NTT] faculty, adjuncts and postdoctoral researchers are not considered permanent.
• Three years of teaching and/or research experience in the academic field, generally beyond the date the Ph.D. degree or highest degree in the field was received.
• National and international recognition as being “outstanding” in the academic field. The employee must meet at least two of six criteria set forth in USCIS regulations.

Criteria Documentation Needed

The Researcher/Professor must meet at least two of the following six criteria that includes evidence of:

1. Receipt of major prizes or awards for outstanding achievement in the academic field.
2. Membership in associations in the academic field which require outstanding achievements of their members.
3. Published material in professional publications written by others about the scholar's work in the academic field.
4. Participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.
5. Original scientific or scholarly research contributions to the academic field.
6. Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

If you believe that you are eligible and qualify for at least two of the criteria for Outstanding Researcher or Professor and have departmental support, please contact Katherine Knight to set up appointment to review options and eligibility criteria.

Note:  If the employee chooses to file the I-140 and the I-485 concurrently, there is a risk that the processing fees will be lost if the Outstanding Researcher petition is denied.  It is recommended that the I-485 be filed after the approval of the I-140 petition.

 (2)  Advanced Degree Professionals

EB-2-  Labor Certification (LC)-  Teaching Faculty (Special Handling)

This category is used for tenure track or tenured college and university professors and the position must include classroom teaching duties.

Eligibility Criteria:

In order for the position to qualify for an application for labor certification, the hiring department must have selected the alien worker in a competitive recruitment process and the labor certification must be filed within 18 months from the date of the original offer--not from the start date of employment. 

The employer must prove, through the recruitment and selection process,  that the alien is the only qualified applicant for the position (i.e., there are no qualified, available, and willing U.S. workers for the position). This is demonstrated through a recruitment process in which the job must be advertised listing the job description and the minimum requirements for the position. The job requirements may not be so restrictive that only the alien can fill the position as the U.S. Department of Labor will deny the application on that basis alone. On the other hand, the job requirements must be such that the employer may lawfully disqualify applicants not qualified.

Process:

These are employer sponsored  petitions, therefore  the petition will be prepared and filed by the university with the assistance of an immigration attorney who has been retained by MSU.  Initially, at Montana State University, labor certification applications are administered by the Office of International Programs.    

 Filing the I-140 with Approved Labor Certification

The forms needed from the employee and department are:

• ETA 750 Original approval of labor certification
• Department letter and contract confirming permanent employment.
• Copy of diploma
• Copy of resume
• Copy of I-94
• Copy of passport with visa stamp
• Copy of H-1B visa approval form from USCIS
• J-1 waiver and copy of all IAP-66 forms (if applicable)
• $700 fee for USCIS processing.  This should be a check made out to The Department of Homeland Security and normally comes from the sponsoring department.
• Copy of annual employment contract

The employee has the option at this point of filing the I-140 petition with approved labor certification concurrently with the I-485 AOS to permanent residency.

Once filed, USCIS reviews and either approves or denies the I-140 petition, or requests additional information.

If the USCIS approves the I-140 petition, then the Application for Permanent Residence (I-485) may be filed by the beneficiary-- normally without the assistance of an attorney.  If the I-485 has already been filed concurrently with the I-140 petition, then it will be reviewed and a determination made by the USCIS.

See more information below about the Form I-485.   

Note: If neither the labor certification nor the outstanding researcher categories are appropriate, then the employee may pursue alternative routes with non-employment based petitions-some of which are listed at the end of this document.

 FEES

To obtain current fees, please visit www.uscis.gov.

Note: The fees connected with the Form I-485 will be the responsibility of the beneficiary (foreign worker).

Note: There will be no refunds issued by USCIS and there is no guarantee of approval.

 Priority Date

If a foreign-born person is being sponsored for a family- or employment- based green card, and is in a category of applicant that faces annual numerical limits on visas, there may be a long wait. Exactly how long depends on the category being sponsored and on supply and demand in that category, combined with per-country limits on visas that make the wait especially long for people from Mexico, the Philippines, and often China and India.

EB-2: Alien of Exceptional Ability

Note: Exceptional ability requires a degree of expertise significantly above the ordinary

Documentation Needed:

 At least three of the following documents are needed to support this category:

• Official academic record demonstrating the alien has the earned degree(s)
• Statement from the employer demonstrating at least ten years of full-time experience in the field   -License or certification for professional practice-Salary or other remuneration for services commensurate with that of a professional -Membership in professional associations
• Recognition by peers or government/professional entities for achievements and contributions

EB-2: National Interest Waiver

An alien may apply for permanent residence status without an offer of employment by establishing that his or her admission to permanent residence would be in the national interest. There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. The USCIS considers each case on an individual basis.

Eligibility Criteria

The procedure is to file the case with evidence establishing that the alien's admission as a permanent resident would be in the national interest. The USCIS considers the following factors when evaluating a request for a National Interest Waiver.

• The proposed employment is in an area that has substantial inherent value.
• The proposed benefit to be provided by the applicant is national in scope.
• The national benefit to be provided by the applicant outweighs the national interest in the labor certification process (i.e. testing the U.S. labor market to ensure that no U.S. worker is available to fill the position for which the applicant is to be hired).

Documentation Needed

Specific evidence is not defined by federal regulation for this category. The evidence should show the importance of the work to the national interest, the national scope or impact of the work, and the exceptional ability of the beneficiary and the importance of the beneficiary to the work.

U.S. Department of State Diversity Lottery Program

 Overview- I-485 Adjustment of Status to Permanent Resident

The information below regarding the filing of Form I-485 should be helpful to understand the general process, but it is not legal advice. You may choose to consult an immigration attorney.

If you wish to find out more about immigration attorneys, please contact Katherine Knight

Note: Make sure to check on the www.uscis.gov site for all updates on application process and fees

Note: After the employee has an approved I-140 petition, he/she is eligible to file Form I-485 if a visa number is available. Form I-485 is the application to adjust status to permanent resident. The I-485 petition is a self-petition. The alien employee provides personal information and history (and that of any dependents) directly to the U.S. Citizenship and Immigration Services (USCIS).

Note: MSU employees must file the I-485 petition either on their own or with the assistance of an immigration attorney.  MSU does not file this application for the employee because it is not an employer petition- it is the beneficiary's petition. 

Eligibility Requirements

1. Approved I-140
2. Immigrant visa number available
3. Alien employees and their family members must not have been in violation of their immigration status.

Documents Needed

Each eligible family member must submit the following to the USCIS

1. Form I-485 with two photos that meet USCIS specifications--In Part 2 of Form I-485, check box a. if you are filing on the basis of a filed or approved I-140 petition. Supplement A is not required unless you are in the United States illegally.
2. Filing fees can be found at www.uscis.gov. The fee covers biometrics (fingerprints) and any applications for employment (I-765) or travel authorization (I-131). You may pay by personal check, money order, or certified check, made payable to the Department of Homeland Security. Staple a separate check to each I-485 form.
3. Fingerprint fee for each applicant 14 years of age or older
4. G-325A Biographical Information sheet for applicants 14 years of age or older
5. 693 Medical Form and Supplement sealed in an envelope by the examining physician
6. Copy of the I-797 Approval Notice of Form I-140 or filing fee receipt
7. Copies of all Forms I-94, I-797, every page in each passport held by the individual and any other documents relating to their U.S. immigration status
8. Letter from the employing department giving job title, duties, salary and assurance of continuing employment. The original is submitted with the employee's application, a copy with each dependent's application.

9. Copy of applicable biographic documents with certified English translation if not in the English language

   • Employee - Birth certificate and, where applicable, marriage certificate, divorce certificate and name change certificate
   • Spouse - Birth certificate and, where applicable, marriage certificate, divorce certificate and name change certificate
   • Child - Birth or adoption certificate
     • Refer to the U.S. Department of State web site to determine what kind of birth, marriage, divorce, adoption or other documents are required by the U.S. government. If a document is listed as “unavailable” then it need not be submitted. In the case of some countries, such as India, where birth certificates may not be available, the applicant must obtain a “certificate of unavailability” from the birth registrar's office and submit this with at least two affidavits from individuals present at the birth (such as parents) attesting to the details of the birth. Such affidavits are also required where the birth was registered at a time far after the birth occurred.
   • Copy of any arrest or conviction record. An immigration attorney will determine if this will affect eligibility for permanent residence.
   • If the employee or a dependent wish to obtain interim employment and/or travel authorization to use in place of the current temporary status, also include:
     • Form I-765 Employment Authorization Document with two photos and a clear copy of an identification document such as a drivers license, state ID card, or recent passport ID page and filing fee.
     • Form I-131 Advance Parole with two photos and a clear copy of an identification document such as a drivers license, state ID card, or recent passport ID page and filing fee (see Travel While an I-485 Application is Pending).

     NOTE: Travel and work authorizations are granted within approximately three months of application and are valid for one year. With USCIS processing times for the I-485 exceeding one year, renewals of the travel and work authorization are normally required.

USCIS vs U.S. Consulate Processing

Filing an I-485 application can be done through the USCIS Nebraska Service Center or through an interview with the U.S. consulate in the home country. The following chart indicates the primary differences between these two approaches.

Travel While an I-485 Application is Pending

You should consult with an immigration attorney before traveling outside of the U.S. during the I-485 Adjustment of Status process. For general information, refer to the USCIS website.

Last update 02.28.2017 (AF)