Pathways to Permanent
Residency
• Elizabeth Leibach, Director, Northern Kentucky
University, ISSS
• Ted Farrell Immigration Law, PLLC
Introduction to Permanent
Residency
• Intermediate step
• Intention to remain (implications for
frequent travel abroad)
• Rights and Due Process
• Laws are codified in Immigration and
Nationality Act (201 and 204 are the
most important sections)
General Introduction
The INA 201 through 204 sections:
1.
Establish the worldwide level of
immigrant visas
2.
Who is entitled
3.
The priorities for distribution
General Introduction
• Benefits
• Right to Work without further authorization
• Right to Public Benefits (limited now)
• Right to Financial Aid
•Right to Citizenship after a period of time
Three Pathways
• Pathways to LPR Status
• Family-Based
• Employment-Based
• First Preference
• Second Preference
• Third Preference
• Humanitarian
• Asylum
• Refugee
• Diversity Visa Lottery
General Introduction
Process Overview
• Apply to USCIS for approval.
• If approved, receive a priority date
• Wait until the date becomes current (note: this
depends on visa type and country)
• If visa is granted, applicant adjusts status from
non-immigrant to immigrant (or via consulate)
Priority Dates
• Priority Dates (Visa Bulletin available at
www.travel.state.gov)
• Overall limit is 480,000 per year
• Additional Stipulation that no more than 20,000
persons per country can enter in a year
Parties Involved in LPR Process
• US Department of Homeland Security
• US Citizenship & Immigration Services
• US Customs and Border Patrol
• US Immigration and Customs Enforcement
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US Department of State
US Department of Labor
US Employer
Employee or “Alien”
International Student Office (ISSS)
Documents of Status or Evidence of Filings
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Form I-797 Request for Evidence
Form I-797Approval Notice for I-140 (change of status)
Form I-797 Approval Notice for I-140 (consular
processing)
Form I-797 Approval Notice for I-485
I-551 Stamp (affixed in passport)
Resident Alien Card (“green card”)
Advanced Parole (Travel Document)
Employment Authorization Document (EAD)
Forms
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ETA 9089 (Permanent Labor Application)
I-140 Petition for Immigrant Worker
I-130 Petition for Immediate Relative Petition
I-485 Application to Adjust Status to Permanent
Resident
I-765 Application for Employment Authorization
I-131 Application for Travel Document
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(Advanced Parole is the most common but can be used for
Reentry permit for permanent residents seeking to re-enter
after a period of absence)
Common Types
Family-Based
Marriage
1) Alien Fiancé
2) If Approved, granted Conditional
Residence (valid just 2 years)
3) Can be tricky to remove conditions
Common Types
Family-Based
Unlimited for Immediate Relatives of U.S. citizens
i. parents
ii. Fiancé
iii. Spouse
iv. minor children
Issues for Students adjusting Status with parents or
relatives (Aging Out)
Dependents and Other Family
Relationship
Limited for these categories:
i. Unmarried Sons and Daughter of Citizens
ii. Spouses and Children, and Unmarried Sons
& Daughters of Permanent Residents
iii. Married Sons and Daughters of Citizens
iv. Brothers and Sisters of Adult Citizens
Diversity Lottery
1) Pure Luck
2) 13.6 million apply, 100,000 people
win, the first 55,000 get the visas
3) Need an Affidavit of Support (must
show that the person will not become a
public charge)
Common University Types
Employment-Based
(1) FIRST Preference (EB-1): Aliens with Extraordinary
Ability, Outstanding Professors and Researchers, and
Certain Multinational Executives and Managers.
(2) SECOND Preference (EB-2): Members of the Professions
Holding Advanced Degrees and Aliens of Exceptional
Ability in the Sciences, Arts, or Business.
a) Special Handling
b) Advanced Degree holder
c) National Interest Waiver (self-petition)
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Basics of EB-1
Outstanding Researcher Basics
 Must show recognition internationally in the academic
field AND three years of experience (post-PhD with
some exceptions)
 Subjective process but there is legal precedent and
legal arguments that can help guide you
 Preponderance of Evidence is the standard (not beyond
reasonable doubt)
 Immigration regulations specify that the foreign
national must present evidence of meeting two of the
following categories [8 CFR 204.5(i)(3)(i)]
SECOND Preference (EB-2)
 Special Handling
Teaching Faculty selected within 18 months of filing
the petition
Requires a national PRINT publication
Employee must have the terminal degree and
experience at the time of selection (not the time of hire)
unless the Ad says ABD
 No additional ads and the standard is higher. You only
need to show that the alien was the most qualified for
the position at the time of hire.
SECOND Preference (EB-2)
Advanced Degree Holder
 Can file for Staff or Faculty (non-tenure as well)
 Requires a new recruitment process (not a “real”
search but for the purposes of ruling out any minimally
qualified candidates)
 Re-recruitment efforts must take place within 180 day
window but not filed earlier than 30 days after the first
Ad is placed
 If experience is required, the employee cannot gain
experience with the petitioning employer in the job
offered unless you can make a convincing case that it’s
a “Business Necessity”
Less Common Types
Employment-Based
THIRD Preference (EB-3): Professionals and
Skilled Workers (requiring two or more years of
specific education training, or experience) and Other
(Unskilled) Workers.
 Professionals are defined as a person
holding a position which requires a
minimum of a bachelor’s degree
 These are complex with longer visa wait times
 May want to consider outside counsel
Eligibility and Inadmissibility
Considerations
Eligible for Adjusting Status
The consultation may involve the following:
• Determination of international’s subjectivity to
212(e)
• Determination regarding “indefinite nature” of
position
• Discussions with legal counsel internal/external
• Determination regarding appropriate preference
category
• Determination of time remaining on H-1B (will
you be able to maintain work authorization while
the case is pending).
LPR Processes and Procedures
Questions to Ask before filing
 Who submits on behalf of the university (you,
department hiring official, human resource department)
 What information do I need? How will I obtain that
information?
 Department may work with the international to submit
the materials but its good to have both parties involved.
Who’s Responsible
I-140 is Employer’s responsibility
I-485 is the Employee’s responsibility
Critical Concerns on the I-485
a) What if I’m asked tough questions
that are unclear or ambiguous on the
I-485?
b) What are the problems on the I-485?
Internal Considerations
Internal and Legal Policies on campus
Using Outside Counsel
Internal Policies on campus
 Written policy is best
 Involve Human Resource & Legal
Department
 Determine the scope of your work
• filing none
• filing all
• filing some
• difficult cases only
Considerations for Outside Counsel
 Weighing the university size, staff
knowledge and training
 Legal Responsibility
 Non-attorney employee purview (who can
sign)
 University is not the applicant with Familybased petitions
 Working with Outside Counsel (How do I
find good counsel?)
Questions???