Green Card / PERM – I-140
The second step in obtaining an employment based permanent resident status is filing of an Immigrant visa petition with the USCIS, by the employer on behalf of the alien beneficiary. The primary purpose of the immigrant visa petition is for the USCIS to ascertain:
- That the alien has the necessary qualifications (education and/or experience) to accept the position based upon the statement of requirements contained in the ETA Form 9089 and
- That the sponsoring employer is financially able to pay the alien the proffered wage.
The alien must document that the he/she satisfies both the educational and experience requirements stated in the Labor Certification petition with the Department of Labor. With respect to the experience requirement, the alien must provide a letter of experience from his/her previous employers.
The experience letter must be on the letterhead of the company and should state the dates of employment, the position title, the position duties. The letter must be signed and dated by an authorized company official.
The employee must also have evidence that he/she meets the educational requirement for the position. Education from abroad will require an evaluation to be conducted to determine the U.S. equivalent degree. Degree equivalency issues for I-140 petitions have, over the past several years become a very complex issue. The degree equivalent standards that have been adopted on ad hoc basis by the USCIS service centers adjudicated petitions is not consistent with the degree equivalency regulations regarding H-1B petitions.
The Nebraska Service Center in response to questions posed by the American Immigration Lawyers Association (“AILA”) provided guidance as to the requirements for degree equivalents.
The following is the Nebraska Service Center’s statement regarding requirements for establishing beneficiary qualifications for a position requiring a master’s degree:
Each petition and its supporting documentation are examined on a case-by-case basis, and degree equivalencies are based on the evidence presented with the individual case. However, the below is provided, as a general outline:
- U.S. Master’s degree – as long as it is in the field required, no additional documents would be required
- 4 yr Bachelor’s degree + 2 yr master’s degree (India) – with degrees :in the same or related fields this will generally be considered the equivalent to a U.S. master’s degree with no additional documents required
- 3 yr Bachelor’s degree + 3 yr master’s degree (India) – with degrees in the same or related fields this, will generally be equivalent to a U.S. master’s degree with no additional documents required
- 3 yr Bachelor’s degree + 1 yr postgraduate diploma + 2 yr master’s degree (India) with degrees in the same or similar field this would generally be considered the equivalent of a bachelor’s degree plus one additional year of education so the beneficiary would also need to have 5 yrs progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree it is possible that this would be a considered the equivalent to a U.S. Master’s degree and there would be no need to establish 5 yrs progressive experience.
- 3 yr Bachelor’s degree + 2 yr master’s degree (India) – Generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category
- 3 yr Bachelor’s degree + 2 yr master’s degree (India) + 5 yrs progressive, post-master’s degree experience – Generally the educational degrees woul be determined to be the equivalent of a U.S. bachelor’s + 1 year and the beneficiary would meet the statutory requirement
- 3 yr Bachelor’s degree + 2 yr master’s degree + 1 yr postgraduate diploma (India) – Generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 211a preference category. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree or the 2 yr master’s degree it is possible that this would be considered the equivalent to a U.S. Master’s degree and there would be no need to establish 5 yrs progressive experience.
FINANCIAL ABILITY TO PAY THE OFFERED WAGE
The financial ability of the sponsor is principally to determine that small companies have sufficient financial resources to follow through with the job offer. It is proved through the company’s production of the corporate income tax return or other competent financial evidence (which may be audited financial statements or annual reports for publicly traded companies).
Please note that if the alien is not on the payroll of the sponsor, the rule of thumb to follow is that the sponsor’s corporate income tax return should show a profit which is equivalent to at least the salary being offered to the alien beneficiary. The financial evidence that will be submitted to the USCIS will be for the year in which the labor certification application is filed with the Labor Department through the year of filing of the I-140 if different.
Based on the Interoffice Memorandum of William R. Yates, Associate Director for Operations from the USCIS,dated May 4, 2004, the Petitioner has to prove the ability to pay the proffered wage. The memorandum states that CIS adjudicators should make a positive ability to pay determination in the following circumstances:
- The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.
- The initial evidence reflects that the petitioner’s net current assets are equal to or grater than the proffered wage.
- The Petitioner is employing the beneficiary and has paid or is currently paying the proffered wage.
A company with at least 100 employees can establish the ability to pay the proffered salary through a letter from the Chief Financial Officer, pursuant to 8 CFR 204.5(g) (2). Said regulation states that the director may accept a statement from a financial officer of the organization which establishes the prospective employer’s ability to pay the proffered wage. If a company is not financially viable, the second part of the process will be denied even though the labor certification has been approved. The financial evidence will not be required to START the case. It will be required when the Labor Department approves the labor certification part and we proceed to file the I-140 immigrant visa petition (step two in the case).