Under U.S. law, there are two general ways that a foreign alien may enter or reside in the United States. One is by non-immigrant visa, in which the foreign alien does not plan to remain in the U.S. and whose stay is temporary in nature. Examples of non-immigrant visas include employment-based visas (i.e., H-1B, O-1, and L-1), family-based visas (i.e., K-1 fiancé), student visas (F-1, etc.), and pleasure visas such as tourist visas (i.e. B-2).
The second way is by immigrant visa. By nature, the foreigner does intend to remain in the U.S. and at the very least, strive to become a permanent resident.
Family-based immigrant visas are always accompanied by the filing of an I-130. Employment-based immigrant visa are always accompanied by the filing of an I-140. The remainder of this article will discuss the basics of an I-140.
A I-140 is a form to petition the U.S. Citizenship and Immigration Services (USCIS) to make a determination that a foreign alien qualifies for an employment-based immigrant visa. It can be filed alone or with another employment-based visa (assuming a visa number is available, depending on that alien’s country of origination).
For I-140, there are two broad categories: Extraordinary-based (EB) and PERM (Program Electronic Management Review System). PERM allows employers to sponsor employees for permanent residency by demonstrating that a particular job opening cannot be fulfilled by a U.S. worker at a preset prevailing wage approved by the Department of Labor. EB-1 petitions are not PERM-based. EB-2 can be either PERM-based or National Interest Waivers. EB-3 petitions are all PERM-based. These examples include:
EB-1(1) – Self-petitions of extraordinary ability, or an outstanding professor/researcher);
EB-1(2) – University-sponsored, non-profit-sponsored, or for-profit sponsors of outstanding professors/researchers. University-sponsored professors must be tenured or on tenure-track;
EB-1(3) – L-1A conversions to I-140
EB-2 – PERM with Master’s degree or Bachelor’s degree + 5 years of experience minimum; National Interest Waivers;
EB-3 – PERM with Bachelor’s degree and no experience, or PERM with Associates’s degree + 2-3 years experience minimum.
There are two requirements that must be completed before the filing of the PERM. The first requirement is that the employee must qualify by having the minimum requisite education and/or experience necessary for the job. The second requirement is fulfilled by the employer’s ability to pay.
The employer’s ability to pay can be met by either the “bright line” test or “grey line” test. The employer meets the “bright line” standard by demonstrating it can pay the employee’s prevailing wage stated in the PERM. Alternatively, the employer can meet this standard by proving it has a net profit greater than the salary(ies) of the total number of PERM-sponsored employee(s). The “grey line” test typically comes into play when the economy is in a recession. Here, if the employer can show that is has been a historically reliable company in paying its PERM-sponsored employees, it will given some leeway in meeting the ability-to-pay standard.