Permanent Residence

 

Permanent Residents (often called green card holders) are authorized to live and work on a permanent basis in the U.S., whereas most nonimmigrants must document their intent to depart the U.S. after a period of time in the U.S.; green card holders should intend to remain in the U.S.

Permanent residence is a complex, multi-step process that often takes longer than a year to complete.

Risk Management provides liaison services for full-time faculty/staff seeking employment-based permanent residency. Faculty seeking EB-2 permanent resident status are strongly advised to retain legal representation (immigration attorney or paralegal who will prepare all documentation) to provide assistance with the completion of the application steps and information that needs to be included with all university approved materials. 

 

When should I start the permanent residency process?

Because of the complexity and length of time it takes and the number of people involved in the process, you should begin the permanent residency process immediately after you are approved for your H-1B visa. Step two (2) of the permanent residency process, the Application for Permanent Employment Certification (Form ETA 9089) must be filed within 18 months of your appointment offer date.

 

What do I need to do to begin the process?

Please reach out to Risk Management to begin the permanent residency process. Shortly following your employment hire date, Risk Management will reach out to you regarding permanent residency. Risk Management can be reached at (657) 278-2255.

 

What about costs?

The first two steps of the permanent residency process, filing Form ETA 9141, Application for Prevailing Wage Determination and filing Form ETA 9089, Application for Permanent Employment Certification are administered through Risk Management, therefore, there is no cost to you. There are filing fees and costs associated with the remaining steps of the process, filing of Form I-140, Immigrant Petition for Alien Worker and Form I-485, Application to Register Permanent Residence or Adjust Status.

 

Do I need to hire an immigration attorney?

Because the permanent residency process is very complex and time consuming, we strongly recommend that individuals pursuing permanent residency retain an immigration attorney for the remaining steps of the permanent residency process. Risk Management is happy to provide information to the immigration attorney.

 

EB-2 - Member of the Professions Holding an Advanced Degree

An EB-2 Labor Certification requires approval by the U.S. Department of Labor (DOL) before an immigrant petition (Form I-140) can be filed with USCIS. For college and university teachers, cases are filed under what is called “Special Handling” procedures. Labor Certification may be granted if it can be demonstrated that after undergoing normal recruitment procedures and using at least one published advertisement, the employer can demonstrate that the foreign faculty is better qualified than any U.S. citizen or permanent resident applicant for the position. Risk Management will manage this process, however, it is important to understand the steps that must be taken to assist the faculty with the process. Risk Management highly recommends that faculty obtain an experienced immigration attorney to process their permanent residency.

1. Advertise the position. It is important to enter the initiation of every recruitment process with the presumption that an international applicant may be hired for the position. To help the international faculty with any future visa or permanent residency endeavors, there are a few requirements that must be met along the way. There are two types of recruitment that can be done under the labor certification process:
   1. The first type, the one that California State University, Fullerton will use most of the time, is available for college and university professors and it is called “special handling” recruitment. This method of recruitment involves those positions which include “some actual classroom teaching” and can be pursued for tenure track positions.
      1. This type only requires that one national print ad be placed – for example, in the Chronicle of Higher Education.
      2. The bargaining representative must also be notified (This is completed by Risk Management).
      3. The ETA 9089, the Application for Permanent Employment Certification – the second step for permanent residency – must be filed within 18 months of the date of selection by the Search Committee (or hiring by the appointing authority) of an international faculty member.
      4. Selective Recruitment also requires that the University notify the bargaining representative of the job opportunity by providing them with an internal job notice or “Notice of Filing” with information about the position.  This Notice should be posted during the advertisement for the position for 10 consecutive days.
   2. The other type of recruitment is called Basic Recruitment. Within the Basic Recruitment there are two types of recruitments depending on whether the position is considered professional or non-professional according to the U.S. Department of Labor.
      1. Professional positions (Job Zone 4 or higher on ONET or those specifically listed on the Department of Labor Appendix) and requirements below: 
         1. Two (2) Sunday Advertisements in a newspaper (i.e., Orange County
             Register, Los Angeles Times).
         2. A 30-day job order with the State Workforce Agency (i.e., CalJobs)
         3. And three (3) additional recruitment methods (out of 10 possibilities), including:
            1. University’s Employment Web Site;                       
            2. Private Employment Agencies;
            3. Trade or Professional Organizations (newsletters, trade journals, web postings on their site, etc.);
            4. Employee Referral Program with Incentives (evidenced by a memo announcing the position and program);
            5. On-Campus Recruiting;
            6. Radio and Television Advertisements during the advertisement phase or determination for the position.  This Notice should be posted during the advertisement for the position.
               1. If the advertisement is a RE-ADVERTISEMENT (for an employee who is outside of the 180 days from their date of selection), the wage can be the current wage of the position.
      2. Non-professional positions (Job Zone 3 or lower on ONET) require just 2 Sunday newspaper advertisements, a 30-day job order and informing the bargaining representative (if applicable).
      3. Both of these methods within the basic recruitment allow the PERM application to be filed within no less than 30 and no more than 180 days of the first advertisement. The PERM can be filed as long as “no qualified U.S. workers were found for the position.” Other special timing requirements must be strictly adhered to in order to file the basic labor certification.
   3. Newspaper advertisements must: 1. Contain the name of the employer; 2. Direct applicants to report to or send resumes to the employer; 3. Provide a job description specific enough to apprise U.S. workers of the job opportunity; and 4. Indicate the geographic location of the job opportunity; 5. If a wage is included, it must be at minimum the prevailing wage; 6. If a wage range is included, the bottom of the range must meet the prevailing wage.

 

Labor Certifications must be filed with the DOL within 18 months of the date documented on the original appointment offer letter for the special handling process.

The DOL processing times may vary, but faculty should expect at least eight (8) months or more.

Once the Labor Certification is approved, the individual’s attorney will submit the immigrant petition (Form I-140).

 

Form I-140 – Immigrant Petition

Processing times vary widely on adjudication of Form I-140s, though it is possible to premium process a Form I-140 for an additional fee, which guarantees 15 calendar days processing by USCIS, barring any extended security checks.

1. Adjustment of Status and Consular Processing – The final step in obtaining permanent residency (obtaining a “green card”), is for faculty to file for permanent residency. This part of the application is between faculty and his/her attorney representation, USCIS and the Department of State (DOS).  This final step can be done while the faculty is in the U.S., in which case it is referred to as Adjustment of Status, or while the faculty is outside the U.S., referred to as Consular Processing. We strongly advise that faculty retain the services of an immigration attorney to manage the permanent residency process.
2. Applying for a Green Card While Inside the U.S./Form I-485 Adjustment of Status – If you are in the U.S. in a nonimmigrant status, then you can apply for permanent residency by filing Form I-485 (Adjustment of Status) with USCIS. This can be done concurrently with submission of the Form I-140, while the Form I-140 is pending or after it is approved. The Form I-485 is the primary form for Adjustment of Status but the application requires many other supporting forms and documents. Processing times for Adjustment of Status vary and heavily depend on the type of application as well as the birth country of the applicant, but most applicants receive their green cards within eight (8) to 24 months of submission of the Form I-485. The process for faculty born in mainland China and/or India can take several years.
3. Applying for a Green Card from Outside the U.S./Consular Processing – In some cases it may be faster for faculty to exit the U.S. and apply for permanent residency at the U.S. embassy or consulate in the home country. This can be expensive, complex and inconvenient, but it may be faster. Faculty interested in this option should consult with an experienced immigration attorney.
4. Re-advertisement - On rare occasion, a department may already employ an international professional or faculty member and because of certain “Green Card” requirements, may need to “re-advertise” the position. In this event, the proper administrative official should contact Risk Management for further guidance to ensure adherence to immigration laws and standards for this unique process.

 

Working While Employment-Based Green Card is Pending

When filing the Adjustment of Status application (Form I-485), you can also apply for an Employment Authorization Document (EAD) (Form I-765) and work on the basis of the EAD. While the cost of the application for the EAD is included in the cost of the Adjustment of Status application, separate applications must be submitted for each benefit. The applications are prepared by the attorney who files the Form I-485.

Once the EAD card is issued, you can work on the basis of the EAD instead of the underlying nonimmigrant status (H-1B). The employment restrictions that apply to the nonimmigrant status (H-1B) do not apply when working on the basis of the EAD. The EAD has an expiration date; if it expires before the green card is issued, it should be renewed.  Please discuss the extension with the attorney handling your green card application.

 

Permanent Resident Travel

Once you are a permanent resident, travel is generally not an issue, provided you have a valid passport from your country of citizenship and your green card. Currently, USCIS is issuing green cards for 10 year periods. You must renew your green card before the expiration date. If you plan on being on an extended leave of absence from the University, you should take steps to preserve your permanent resident status prior to leaving the U.S. Therefore, if you plan to remain outside of the U.S. for an extended period of time, you should consult with an experienced immigration attorney.

 

Applying for a Social Security Card

All permanent residents of the United States must have a valid Social Security number.  For more information, please contact Social Security Administration .

 

Taxes

As a U.S. permanent resident, you must always pay taxes as a “resident” for tax purposes. Failure to file U.S. tax returns as a resident indicates your intention to be considered a nonresident of the U.S., which in turn establishes your intent to abandon your permanent resident status.