Overview of Permanent Residence

This information outlines the several ways that it is possible to become a permanent resident of the United States.  For more information about permanent residence in general, OIP-ISSS recommends consultation with a qualified immigration attorney. For information about permanent residence sponsorship for certain full-time employees of the University of Pennsylvania, including the University of Pennsylvania Health System (UPHS), please see the section entitled Permanent Residence at the University of Pennsylvania, below.   

What is Permanent Residence?

 A person who has permanent resident status in the United States has the right to live and work in the US. This right may last for a lifetime, or it can be ended in some circumstances by an uninterrupted absence from the United States of more than a year or two.

 Permanent residents are said to have immigrant status in the US, in contrast to foreign nationals who are here temporarily in nonimmigrant status, such as F-1 students, J-1 scholars or H-1B temporary workers. A permanent resident is said to have a green card, an outdated reference to the permanent residence identification card, which used to be green but is now a pale red, white and blue. Permanent residents are also often said to have PR.

 Permanent residence is not the same as citizenship. Permanent residents of the US remain nationals of their home country. They do not hold US passports and they do not owe allegiance to the US. They may not vote in elections, and they may not hold elective office.  After a certain period of physical presence in the US (five years in most cases, three in some), permanent residents can apply for US citizenship if they choose, but it is not necessary to become a citizen to retain the right of permanent residence.

Introduction

There are several avenues for acquiring permanent resident status in the United States. Following is a brief summary of the options. For more information about permanent residence in general, OIP-ISSS recommends consulting a qualified immigration attorney.  

Click here for the Penn Outside Legal Counsel Program website for details on the law firms authorized to handle Penn-sponsored cases, the summary of fees, billing, processes, etc.  Note that OIP-ISSS continues to process teaching faculty cases for which a Labor Certification Application can be filed within the 18-month filing window.

Obtaining PR: Five Possibilities

The laws governing immigration in this country of immigrants have changed drastically over the years. At present, legal immigration is tightly limited, with preference given to close family members of US citizens (and permanent residents) and the professionally skilled and highly talented who come to the country to take up specialized or high level jobs. Within these limits, various provisions of current immigration law attempt to insure equity and national diversity in the continued flow of new residents to the US.

It is possible, at present, to become a permanent resident of the US in any of five ways: through the petition of a close relative, by a successful application for political asylum, through the petition of an employer, by winning the annual green card lottery, or through self-sponsorship.

• Family-Based PR: If you have a mother, father or spouse who is a citizen or permanent resident of the US, that relative may be able to file a petition with USCIS to obtain permanent residence for you. If you have a child or sibling who is a US citizen and is at least 21 years old, that relative can also petition for permanent residence for you. Depending on the relationship between you and whether your relative is a citizen or permanent resident, it can take several months to more than 10 years for you to obtain permanent residence in this way.

• Asylum: If you can prove to the satisfaction of immigration officials that you have a well-founded fear of persecution should you be forced to return to your home country, you may be able to obtain permanent residence in the US through an appeal for asylum. Applications for asylum must generally be filed within one year from last entry to the US. An asylum application often takes years to complete and is best done with the aid of an attorney. The majority of asylum applications are eventually denied, although applicants from countries whose governments are considered by the US to be hostile to the United States have often experienced a higher approval rate.

• Diversity Lottery: After several prior experiments in making permanent residence available through a lottery system, Congress instituted the diversity lottery program in 1993. This program allots 55,000 green cards every year under a complex formula that favors nationals of countries that have contributed fewer immigrants to the US in recent years. Recent diversity lotteries have favored applicants from Africa and most of Western Europe, since these areas have been least represented in immigration to the US in recent years. Millions of people apply for the annual diversity lottery. Regional allocations for the diversity lottery will change every year in response to changing immigration patterns. Registration for the diversity lottery, which usually takes place for a thirty-day period in Fall each year, is simple and does not require an attorney or agent of any kind.   Please see http://travel.state.gov/visa/immigrants/types/types_1318.html for information on applying for the Diversity Lottery.

•  Employment-Based PR: If you have a permanent, professional level job in the US, and if your employer can prove that there are no qualified US persons available for the position, you may be able to obtain permanent residence through the petition of your employer. A second employment-based option is the Outstanding Professor/Researcher petition, in which an employer demonstrates that the employee meets criteria which show that he or she has risen to the very top of his or her field of expertise. In the case of Penn teaching faculty positions, different standards apply. Refer to the section entitled Permanent Residence at the University of Pennsylvania, Labor Certification for Faculty Teaching Positions, below.

A professional worker may obtain permanent residence when first entering the US to take up a senior position. More often, however, an international scholar will begin working with authorization based on his/her F-1/J-1 nonimmigrant student status or as a temporary worker in H-1B status. At some point - a point that may come almost immediately or only after several years - the employer may be able to petition successfully for permanent residence for the worker. The employment-based application process can take anywhere from a few months to several years from start to finish, depending on the filing location and the length of a variety of processing backlogs that can come into play.

• Self-Sponsorship: Certain highly accomplished scholars may find two routes to permanent residency available to them without having to have a permanent job offer, or any job offer for that matter. The first possibility is for an alien who can be documented to be of extraordinary ability in the sciences, arts, education and business. This category is reserved for those who are at the very top of their field. When a job offer is not involved, the scholar must demonstrate his or her intent to continue work in his or her field. Only faculty and researchers of international reputation - who can document that reputation - will qualify for permanent residency under this category. The second possibility for a scholar to sponsor himself/herself for permanent residency is through the national-interest waiver application. The national-interest waiver may be filed either by the alien or by the employer. If it can be demonstrated that the work being done is (1) in the national interest and that (2) the scholar’s continued presence is crucial to the on-going work, the scholar - acting on his or her own - or the employer acting on the scholar’s behalf may be able to obtain permanent residence through a national interest waiver. A letter from an interested US government agency recommending the waiver is very useful when applying for a national interest waiver.

Permanent Residence at the University of Pennsylvania

In order to consider a request from a nonimmigrant employee for Penn sponsorship in the permanent resident process, one must consider both Penn policy and government regulations.

The University of Pennsylvania usually sponsors only full-time, regular employees in certain academic positions for US permanent residence. Penn will not sponsor staff who are in nonacademic positions, unless a special case can be made for an exception to this policy. US immigration laws and Penn policy do not permit Penn to sponsor students, part-time employees, or temporary employees for permanent residence. (See Policy No. 119: University Sponsorship for US Permanent Resident Status for Staff Positions).

If Penn is able to sponsor a nonimmigrant employee for permanent residence, OIP-ISSS will initiate an immigrant petition with the US government or authorize an immigration attorney retained by Penn to initiate one. A Penn-sponsored immigrant application cannot be initiated without OIP-ISSS authorization

• Foreign National Employees in Academic Positions at Penn

  Penn offers permanent residence sponsorship to full-time, regular foreign national employees in academic job classifications at Penn. These positions include professor, associate professor, assistant professor and research associate (a department must have secure funding for at least three years in the future for Penn to sponsor a research associate). Penn does not sponsor postdoctoral fellows and lecturers for permanent residence, since these positions are considered temporary and do not always carry full Penn employee benefits. Individuals offered tenured appointments must have US permanent resident status before accepting the appointment.

• Tenured Appointments

  If a department is considering offering a tenured appointment to a foreign national who does not already have permanent resident status, the following points must be borne in mind:

  • Since a tenured appointment is an appointment without limit of time, the only status appropriate for such an appointment is permanent resident status.
  • Obtaining permanent residence takes time, often more than 2 years.
  • A tenured appointment cannot be conferred by Penn until the individual has obtained permanent resident status.
  • If an academic department is considering an offer of a permanent position and feels the delay is longer than they can wait to fill the position, the department may want to consider offering a temporary position, such as a visiting faculty appointment.  This will enable Penn to obtain H-1B visa status for the individual.
  • If the scholar is already in the US in a nonimmigrant status, adjustment of status to permanent resident status is sometimes possible.  However, this process must be completed before the individual can take up the tenured appointment.

• Tenure Probationary Appointments

  An international scholar may be appointed to a faculty position that at the outset is not tenured. If the candidate does not have, at the time of appointment, the appropriate immigration status, the letter of offer should clearly state that the appointment is conditional upon obtaining the appropriate immigration status.

  As with the appointment of a foreign national to a tenured faculty position, if the appointee does not have US permanent resident status, Penn will normally sponsor the application for such status. If there is not sufficient time to obtain permanent resident status, the appointee may obtain H-1B status for the initial period of the appointment (i.e., the first three years in most instances). USCIS policy directives concerning H-1B status introduce the concept of dual intent which makes it possible for the employer to use H-1B status for tenure-track or lecturer appointments while in the process of obtaining permanent resident status for the appointees.

• Non-Tenure Accruing Academic Appointments

  Occasionally, Penn will sponsor certain individuals holding non-tenure accruing positions within the academic staff for US permanent residency. In all instances there must be evidence of on-going support (a minimum of three years) for the position and an indication from the chair of the department of the desire for Penn to sponsor the application. This policy will include some research associates and in a few cases, the positions of senior lecturer and lecturer in foreign language.
  

  Postdoctoral positions are temporary by nature and cannot be used as the basis for a Penn-sponsored application for permanent resident status.

Four Paths to Employment-Based Permanent Resident Status

Penn will use the most appropriate of four procedures to obtain permanent residence for a qualified academic employee:

• an outstanding professor/researcher petition, a petition for labor certification/special recruitment for a teaching faculty position,
• a petition for labor certification for persons holding advanced degrees, or
• a national interest waiver for persons holding advanced degree

Outstanding Professor/Researcher: Approval of an outstanding professor/researcher petition can be obtained if Penn can demonstrate that a sponsored employee has an exceptional record of scholarly achievement in his or her field. More than three years of teaching and/or postdoctoral research experience, a very strong record of publications, superlative evaluations by recognized experts in the field, and the receipt of prizes, awards, or other forms of professional recognition are usually required to obtain approval of an outstanding professor/researcher petition. This type of case is handled through Penn’s Outside Immigration Counsel program.

Labor Certification for Faculty Teaching Positions: Penn can apply to the Department of Labor for labor certification under optional special recruitment and documentation rules, which replace the previous special handling rules, for a sponsored employee appointed to a teaching faculty position (e.g., (assistant/ associate) full professor). Under special recruitment rules Penn is not required to demonstrate that there were no qualified US workers available for the position, but only that the appointee was the best qualified applicant. Penn can usually meet this requirement by presenting to the Department of Labor the details of the Penn departmental recruitment process that led to the faculty appointment. This process usually takes between 1 and 3 years. For individuals born in China or India this, process may take several more years. This type of case is processed directly by OIP-ISSS when the Labor Certification Application can be filed within the 18-month filing window.

Please note that labor certification applications under special recruitment rules must be filed with the Department of Labor within eighteen months of the sponsored employee's selection for the position. Additionally, documentation of one print advertisement in a national professional journal and all other recruitment used in the search is required. Failure to file within this time period and to document the print ad and one additional recruitment method used in the search may make it impossible for Penn to obtain permanent residence for an employee in a faculty teaching position for a period of several years or longer.

Labor Certification for Advanced Degree Holders:  Penn must demonstrate that there are no qualified US workers available for the position in question. This is done through a special advertising process under the supervision of the Department of Labor. Penn must also meet Department of Labor wage requirements in order to obtain an approved labor certificate. Once prevailing wage requirements are met, most Penn applications for labor certification in the academic job categories succeed, since the positions in question generally require high levels of education and specialized experience in short supply in the domestic labor pool. This process usually takes between 1 – 3 years or more to complete Depending on the person’s country of birth, this process may take several more years. This type of case is handled through Penn’s Outside Immigration Counsel program.

National Interest Waiver: Immigration reform legislation of 1990 and 1991 created a new path to permanent residence known as the national interest waiver. This legislation allows the Attorney General when s/he deems it to be in the national interest, [to] waive the requirement... that an alien's services in the sciences, arts or business be sought by an employer in the United States. The provision can apply to both aliens of exceptional ability and to members of the professions holding advanced degrees (or the equivalent). These applications for permanent residence are exempt from the labor certification requirement.

 To obtain a national interest waiver it must be demonstrated that:

• the work being done is in the national interest
• the alien's continued contribution is crucial to the work.

Applications are more likely to succeed if it can be shown that the alien's work meets one or more of the following seven conditions:

• it improves the economy

• it improves the wages and working conditions of US workers

• it improves education and training programs for US children and under-qualified US workers

• it improves health care

• it provides more affordable housing for poorer US residents

• it improves the US environment and make more productive use of natural resources, or

• is requested by an interested US government agency.

Penn may use the national interest waiver to obtain permanent resident status for Penn sponsored employees in order to avoid the longer labor certification process with the Department of Labor. This process usually takes between 1 – 2 years or more to complete. Depending on the person’s country of birth, this process may take several more years. This type of case is handled through Penn’s Outside Immigration Counsel program.

Nonimmigrant Employees in Non-Academic Staff Positions at Penn

Penn does not sponsor foreign national employees in non-academic staff positions such as research specialist, programmer-analyst, or laboratory technician for permanent residence. This policy, which is set out in the University of Pennsylvania, Human Resources Policy Manual 119.1, is an expression of Penn’s desire to provide employment opportunities for US workers in the Philadelphia area. Penn can make an exception to this policy, however, if it can be demonstrated that there are no qualified US workers available in the Philadelphia area for a given staff position (119.2).

Human Resources will determine if an exception to policy 119 will be granted and notify ISSS and the department of their decision. Human Resources will not consider granting exceptions under the following circumstances:

• The applicant is not a full-time or part-time regular staff member
• The applicant is in the introductory or 90 day evaluation period (transfers)
• The applicant is in a non-exempt job title
• The applicant is in any job where the minimum experience required is less than or equal to a BA/BS and 1 year experience.

Please note that while the Human Resources exception request process resembles some labor certification procedures, the exception process is completely separate from and usually has no bearing on an application for labor certification with the Department of Labor.

General Application Procedures for Filing for US Permanent Resident Status

There are three steps involved in obtaining US permanent residence on the basis of an offer of employment when an individual is in the US and seeking to adjust to permanent resident status while remaining in the US:

• Labor Certification Application filed with the Department of Labor. The purpose of the labor certification application is to demonstrate that the employer selected the alien for the job opportunity pursuant to a competitive recruitment and selection process, through which the alien was found to be more qualified than any of the US workers who applied for the job or in the case of a teaching position, the best qualified. This step is not necessary for an application filed under the outstanding professor/researcher, extraordinary ability or national-interest waiver category.

  Note: 1) An employer may not receive payment of any kind associated with a labor certification application, nor may an employer receive reimbursement for any costs associated with a labor certification application, including payment of employer's attorneys' fees. The DOL requires that all costs associated with labor certification be paid by the employer and not the employee.  2) Application approved after July 16, 2007 must be filed in support of a Form I-140 immigrant petition within 180 days of approval or it will expire.

All Penn schools, centers and departments should take steps to ensure that any employee for whom Penn has filed a labor certification application is informed of these regulations. If an immigrant petition is not filed on behalf of the employee within 180 days of the approval of the labor certification, we will be unable to continue permanent residence sponsorship for that employee.

• Petition for immigrant classification filed with USCIS (I-140). This is the first step in the petition process for classification as an outstanding professor/researcher, extraordinary ability, or national-interest waiver.

• Application for adjustment of status for each individual and any non-US citizen family members to that of a US permanent resident filed with USCIS. Applicants  not working with an attorney may obtain the forms required for the adjustment of status application from USCIS:  http://www.uscis.gov/.

Policy on the Use of Outside Immigration Counsel for Certain Employment-Based Permanent Residency Applications

Effective August 15, 2008, Penn established a policy under which outside immigration counsel will process certain employment-based immigrant petitions.   Only the designated firms will be authorized to represent Penn in PR cases, unless determined otherwise by the Office of General Counsel. Please note that only OIP-ISSS is authorized to sign any immigration-related applications representing Penn.

In order to initiate the PR process for an employee, thoroughly review the Penn Outside Legal Counsel Program website and submit a PR: Initial Review Form to OIP-ISSS. 

General immigration questions should be directed first to ISSS at 215-898-4661. An attorney on the retained immigration counsel list should be contacted only about a specific matter which he or she has been retained to handle. Penn departments or employees may contact an attorney on the retained outside immigration counsel list to ask questions about their services (e.g., his or her experience handling similar cases, the amount of time it typically takes him or her to complete this type of case, his/her staff members’ language skills, etc.)

The retained counsel will assist University of Pennsylvania departments and the University of Pennsylvania Health System (UPHS) with permanent residency applications not processed by OIP-ISSS staff or which cannot be processed by ISSS staff due to time constraints or unusual circumstances. OIP-ISSS will continue to process permanent residency cases for teaching faculty members when the Labor Certification Application can be filed within the 18-month filing window.

 Related Links

•  Penn Outside Legal Counsel Program