Overview of Permanent Residence Options
OIS is responsible for the filing of all Vanderbilt-sponsored permanent residence applications. Upon request from a department, OIS will file any of the following types of permanent residence applications:
- PERM – Permanent Labor Certifications & I-140 (Regular EB-2 and EB-3 filings; Special Handling Permanent Teaching positions & Registered Nurses & Physical Therapists)
- National Interest Waiver (NIW) petitions (EB-2)
- Outstanding Researcher & Professor petitions (EB-1)
- Persons of Extraordinary Ability petitions (EB-1)
Permanent Labor Certification
Regular PERM: Many employees in staff positions at Vanderbilt qualify for the three step permanent residency application commonly known as the PERM Labor Certification process. This three-tiered process has three requirements:
- Blind market test conducted by employer pursuant to Dept. of Labor (DOL) regulations
- I-140 petition (employer petition for permanent foreign worker)
- I-485 application (employee application for permanent residence). This step includes the advance parole and employment authorization (EAD) filings.
Blind Market Test: With the blind market test, Vanderbilt is required to show that we could not find a ready, willing and able US worker for the position held by the international employee. The market test is solely a test, however, and does not require the department to terminate employment of the international employee should a US worker be found who is ready, willing and able to perform the job duties. Finding a US worker in this fashion simply means that we cannot move forward with the PERM filing.
OIS works closely with the department and HR Recruitment to post advertisements per the Department of Labor’s regulations. Generally speaking, the recruitment process lasts about 6 - 8 weeks. During the recruitment process, the HR Recruiter will collect and review all applications received for the position. After an initial review, if the Recruiter feels that a US worker applicant may be minimally qualified, that resume will be forwarded to the department for additional review.
If the department is unable to find a ready, willing and able US worker for the position, OIS will be able to file the PERM labor certification online with the Department of Labor. As mentioned above, if a ready, willing and able US worker is found, OIS can not file the PERM labor certification and the application process will stop. A OIS advisor will then discuss further permanent residence options with the department and international employee.
I-140 Petition: After the PERM labor certification is approved, OIS will immediately work on filing the second step of the application, the I-140 immigrant petition. This petition is filed directly with the United States Citizenship & Immigration Services (USCIS). With the I-140 petition, OIS provides documents to show that Vanderbilt is offering a permanent position to a nonimmigrant employee; that the nonimmigrant employee met the minimum requirements of the position before coming to Vanderbilt; and that Vanderbilt has the financial ability to pay the offered salary. This petition generally takes a couple of weeks to prepare and, once filed, takes about 2-5 months to be approved.
I-485 Application: The I-485 application (adjustment of status) is the final step of the permanent residence process regardless of which of the employer petition methods was used. As the I-485 process is the same for every permanent residence filing, it will be discussed below.
Special Handling PERM: Similar to the PERM Labor Certification process discussed above, the Special Handling PERM application is a three-tiered process through which an employer seeks permanent residence for a nonimmigrant based on filings submitted with the Department of Labor and USCIS. However, the Special Handling category is set aside for Higher Education Teachers holding permanent positions. The benefit of the Special Handling application is that, unlike the regular PERM process, a new market test does not need to be conducted as long as the initial recruitment effort meets DOL requirements.
In general, DOL requires that the employer have undertaken a professional, competitive recruitment effort with at least one print advertisement placed in a national professional journal no more than 18 months before the PERM filing. Departments seeking permanent residence of teaching faculty are urged to pursue this type of application. In most cases, the teaching faculty member is hired through a professional, competitive recruitment effort that meets DOL requirements:
(1) A national recruitment effort was conducted;
(2) At least one of the advertisements for the position was a print ad in a professional journal likely to be viewed by people qualified for the position; and
(3) The international employee hired was the best qualified for the position.
Again the PERM application must be filed within 18 months from the date the position was offered to the teaching faculty member.
Once all of the required documentation is collected for the Special Handling filing, OIS will submit the application online with the Department of Labor. The rest of the process (Steps 2 & 3) follows the same timeline as discussed above in the PERM Labor Certification (Regular PERM) section.
Professional Nurses (RNs) and Physical Therapists
DOL has determined there are not sufficient US workers who are able, willing, qualified and available for Physical Therapy and Professional Nursing positions. In addition, DOL has established that the employment of foreign nationals in these occupations will not adversely affect the wages and working conditions of US workers similarly employed. Due to these two DOL determinations, filings for professional nurses (RNs only) and Physical Therapists are made directly with USCIS.
In order for OIS to file this type of application, Physical Therapists must possess all the qualifications necessary to take the physical therapist licensing examination in the State of Tennessee. Therefore, before the permanent residence petition is filed, OIS will confirm that all current state requirements have been met. Current Tennessee licensure requirements for physical therapists can be found at http://health.state.tn.us/boards/pt/.
Professional Nurses must have the following:
- Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate (Visa Screen)
- Passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or
- Hold a full and unrestricted (permanent) license to practice nursing in the State of Tennessee
In addition, Vanderbilt must post a notice at the location where the RN will work stating that we are filing a petition for permanent residence for an RN. The notice must include both the job description and the rate of pay. A range of pay is acceptable as long as the RN will be paid at least the bottom of the pay range. The notice must be posted in a conspicuous place for a minimum of 10 consecutive business days.
Additional information about filing permanent residence petitions for RNs and Physical Therapists can be found in the Permanent Residence Packet: Professional Nurse (RN) or /Physical Therapist.
National Interest Waiver, Outstanding Researcher & Professor & Person of Extraordinary Ability FIlings
Before the data collection and preparation process begins for the NIW, Outstanding or Extraordinary Ability filing, OIS must determine that the employee is eligible for the requested classification. In order to do so, the employee must provide these documents:
- A copy of the most recent curriculum vitae (CV);
- A research/professional statement that discusses all research or professional activities and the significance of the work and findings (if any). The research/professional statement is usually 3 - 5 pages in length but can be longer if necessary. We ask that the employee limit it to no more than 10 pages, however. Please note that the statement has to be understood by USCIS officers who are likely not academically trained in the employee's field and likely do not have terminal degrees. That is also true of OIS staff. We ask that the employee visualize writing the research/professional statement for an audience of high school students (ages 16 - 18) in an honors, AP, or gifted program. OIS actually has a roster of high school students from Martin Luther King Magnet High School (MLK Magnet) that we call upon, at times, to read these statements. If the student cannot understand what is written we will send it back to the employee with a request that it be rewritten so that is can be understood by a layman. This will mean that the scientific and/or technical terminology will have to be explained or re-worded but the focus here is to ensure approval. USCIS will not easily or comfortably approve a filing they cannot understand. Rest assured that if OIS files an application or petition on the employee's behalf, the employee's body of work and expertise are clearly acknowledged and identified. A statement that is readable and clearly understood also emphasizes expertise and contributions to the field in the best way possible.
National Interest Waiver (NIW) Petition:
The NIW petition is a two step process involving the filing of the I-140 (immigrant petition) and I-485 (adjustment of status) only. No initial filing with the Department of Labor (DOL) is required. The NIW category requires that Vanderbilt establish that the employee’s professional contributions and career field are of significant importance to the US’ national interests. To meet this requirement, we must show that the employee is working in an area of significance to the US and that the employee is making a significant contribution or playing a significant role in the area.
OIS’s NIW Packet contains a list of criteria that must be met to show significant area and significant contribution. At least three and preferably four of the following must be provided to USCIS:
- An official academic record showing a Ph.D., Master's or Bachelor's degree related to the area of exceptional ability. If Bachelor's degree is the highest degree attained, will also need to show 5 years of progress post bacculaureate experience in the field through employment letters
- Evidence of the receipt of major prizes or awards for achievement in the academic field
- Evidence of authorship of scholarly books or articles in scholarly journals (first two pages of each publication/journal only)
- Evidence of membership in associations in the academic field
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations. Letters from distinguished members of the academic field who can attest to the significant contributions you have made to the industry or field. A copy of the license or certification necessary to practice in the field (if applicable).
- Evidence of a salary that demonstrates exceptional ability (i.e. a higher salary than the industry norm)
- Letters from current or former employers showing at least ten years of full-time experience in the occupation being sought.
National Interest I-140 petitions are filed directly with the USCIS. Once filed, they generally take about 3-6 months to be approved. The NIW petition can not be premium processed. For most employees (except citizens of India and China) the I-485 application can be filed concurrently with the I-140 petition or it can be filed after the NIW (I-140) is approved. Additional information on the I-485 application is below.
Outstanding Researcher/Professor Petition :
The Outstanding Researcher/Professor petition is a two step process involving the filing of the I-140 (immigrant petition) and I-485 (adjustment of status) only. No initial filing with the Department of Labor (DOL) is required. This category requires that Vanderbilt establish that the professor or researcher is internationally recognized as outstanding in the professional field specified in the petition. In addition every employee must show at least three years of full-time work experience or evidence that the employee was internationally recognized as outstanding during their graduate or post-graduate studies. The burden of proof for the Outstanding Researcher/Professor is much higher than that of most other permanent residence filings because of the international recognition requirement.
OIS’s Permanent Residence: Outstanding Researcher/Professor Packet contains a list of criteria that must be met to show that the employee qualifies for categorization as “outstanding.” Substantial evidence of at least three and preferably four of the following must be provided to USCIS:
- Evidence of the receipt of major prizes or awards for outstanding achievement in the academic field
- Evidence of authorship of scholarly books or articles, in scholarly journals with international circulation in the academic field (first two pages of each publication)
- Evidence of membership in associations in the academic field which require outstanding achievements of their members
- Evidence of original scientific or scholarly research contributions to the academic field; copyrights or patents
- Evidence of published material in professional publications written by others about the foreign employee’s work in the academic field
- Evidence of participation on a panel or individually as the judge of the work of others in the same or related academic field
- Evidence of oral presentations or poster presentations
- Letters from distinguished members of the academic field who can attest to the outstanding quality of the foreign employees who work and his/her international recognition
Outstanding Researcher/Professor I-140 petitions are filed with the USCIS. Once filed, they generally take about 3-6 months to be approved. The petition can be premium processed but premium processing is not recommended , unless it is absolutely necessary to maintain lawful employment, as it tends to do little more than result in extensive requests from USCIS for additional information. All employees (including citizens of India and China) may file the I-485 application either concurrently with the I-140 petition or after the I-140 is approved. Additional information on the I-485 application is below.
Persons of Extraordinary Ability Petition:
The Person of Extraordinary Ability petition is a two step process involving the filing of the I-140 (immigrant petition) and I-485 (adjustment of status) only. No initial filing with the Department of Labor (DOL) is required. This category requires that Vanderbilt establish that the employee internationally is recognized as extraordinary in the professional field specified in the petition. In addition every employee must show at least three years of full-time work experience or evidence that the employee was internationally recognized as outstanding during their graduate or post-graduate studies. The burden of proof for this petition category is higher than that of all other categories.
OIS’s Permanent Residence: Person of Extraordinary Ability Packet contains a list of criteria that must be met to show that the employee meets the “extraordinary ability” requirement. In order to successfully petition for a Person of Extraordinary filing the following must be provided to USCIS:
Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or substantial evidence of at least three, and preferably four of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
In addition, letters from distinguished members of the academic field who can attest to the extraordinary nature of the employee’s work and professional contributions are beneficial.
Persons of Extraordinary Ability I-140 petitions are filed with the USCIS. Once filed, they generally take about 3-6 months to be approved. The petition can be premium processed but premium processing is not recommended, unless it is absolutely necessary to maintain lawful employment, as it tends to do little more than result in extensive requests from USCIS for additional information. All employees (including citizens of India and China) may file the I-485 application either concurrently with the I-140 petition or after the I-140 is approved. Additional information on the I-485 application is below.
I-485 Application (Adjustment of Status)
The I-485 is the final step of all permanent residence processes. The I-485 is a personal application and, therefore, OIS can not prepare this application on behalf of a Vanderbilt employee. Employees may wish to review our I-485 Memorandum webpage for information about the forms, fees and documents required for submission of the I-485. A link to each of the forms (I-485, G-325A, I-765 and I-131) submitted in this step of the application can be found at: http://uploads.lawlogix.com/blank_forms/blank_forms.htm .
OIS staff may also answer some questions related to the forms but may not provide advice on how the questions should be answered. Employees filing the I-485 application may complete the forms with OIS review, or hire an immigration attorney to represent them in the filing. There are many qualified immigration attorneys in the Nashville area that can provide legal assistance. For information about attorney fees, please contact the immigration attorney of your choice.
The I-485 approval will occur after the I-140 has been approved. The employee will first receive an approval notice welcoming them to the US as a permanent resident. The actual permanent residence card (I-551) will arrive in mail, at the address provided on the I-485 form, about 2 – 4 weeks later. Employees should contact OIS as soon as the permanent residence card is received so that immigration, international tax, payroll and I-9 records can be properly updated.
Important Note : Persons who have been out of status, failed to maintain status, or in violation of status (including unauthorized employment) for at least 180 cannot obtain permanent residence (file an I-485) under the employment-based categories EB-1, 2, 3, 4. (Vanderbilt provides sponsorship for categories EB-1, EB-2 and EB-3). If you are not sure if you have been out of status or otherwise failed to maintain status, please contact our office immediately and before the I-140 is filed.
Also note that persons seeking permanent residence due to family-based sponsorship cannot file an I-485 if there is any violation of nonimmigrant status ever --- whether on a current entry or a past one. There are only two exceptions to this bar (1) applicants who are immediate relatives of US citizens (can obtain permananent residence even if applying on the basis of a petition filed by someone other than their immediate relative), and (2) applicants who can show that the violation occured due to no fault of their own or for technical reasons. Persons seeking permanent residence through family sponsorship are advised to contact an immigration attorney for legal guidance.