The majority of foreign students who seek to obtain permanent residence by sponsorship of their employers must go through the PERM process. There are ways, however, of avoiding this process for a select few. The law allows for a certain minority of applicants to begin their application for green cards directly submitting their petition to USCIS.
A number of occupations, including million-dollar investors to religious workers, can avoid undergoing the labor certification process. The following occupations are common jobs that foreign students can obtain that are exempt from the labor certification process.
The Labor Department determines areas of employment that are experiencing a shortage of workers and are thus exempt from having to submit their application through the labor certification process. Currently, the Labor Department’s list of occupations experiencing a shortage of workers only includes (1) registered nurses and (2) physical therapists.
Priority Worker Occupations:
The Immigration Act of 1990 changed a considerable amount of the employment-based immigration provisions included in previous law. It created a category of workers that would be exempt from the labor certification process known as priority workers that would fit one of three subcategories: (1) persons of extraordinary ability, (2) outstanding professors and researchers, and (3) certain multinational executives and managers.
According to the definitions given by law, a person of extraordinary ability is an individual who belongs to a “small percentage” that have “risen to the very top of the field of endeavor.” If an individual qualifies for this category, he or she does not have to be sponsored by a specific employer. However, this category is demanding and requires considerable documentation to prove that the individual is indeed a person of extraordinary ability. In addition, the person’s extraordinary ability must be in (1) the arts, (2) sciences, (3) athletics, (4) business or (5) education.
For the second subcategory, outstanding professors and researchers, the individual must prove that he or she is internationally recognized as “outstanding” in his or her respective academic field and meet other requirements such as three years of teaching or research experience, and a tenure or tenure-track position.
The third subcategory relating to multinational executives and managers is seldom used because it requires that a foreign student be employed as an executive or manager for at least one of the preceding three years.
There is another PERM exception for which an individual can obtain a national interest waiver. This exception requires that you possess an advanced degree or have exceptional ability in the arts, sciences, or business that would be of national interest should he or she immigrate to the United States. To be considered for a national interest waiver, as per the regulations of USCIS, the following factors would have to be met: (1) improve the U.S. economy, (2) improve wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or poorer U.S. residents, (6) improve the environment and make more efficient use of natural resources, or (7) were requested to come by a U.S. government agency.
National interest waivers are a challenge to obtain, but not impossible, even after the precedent decision made by Immigration and Naturalization Service (INS) in 1998, which made it more difficult for individuals other than physicians to qualify for green cards through the waivers.