This topic has come up with several of our clients recently, those wanting to hire people not in the US, thosecurrently in the US who needed to leave because of a lost job or because they wanted to take ashort-term job opportunity, and those who were in their own country already and wanted to come to the US without having to necessarily get a temporary visa. The one thing most of these people had in common was most of them had a friend who told them that they needed to be in the US to get a green card (spoiler alert: this is not true) . Because of this upsurge in questions on this issue, it seemed wise to put the information out there for those interested.
If you are being sponsored by an employer you do NOT need to be in the US during the entire processing of the application (until your immigrant visa is approved, that is). The employer can perform recruitment (if needed), file the labor certification, and even file the I-140, all without your presence in the United States. This holds true for BOTH
PERM sponsorship and Outstanding Researcher applications. There is no requirement that you are either physically present in the US or presently working for the employer when being sponsored by an Employer. Of course, once the Immigrant Visa is approved and you are in the US, you should begin working for the employer.
The way the process would work is that once the I-140 (Petition for Alien Worker – the application to USCIS stating that an employer is sponsoring you and what type of petition is being filed (Outstanding Researcher, PERM for an advanced degree, etc.) is approved, that approval will be sent to the National Visa Center (NVC) for preliminary processing. The NVC makes sure you complete all forms, send in all necessary documents and pay all needed fees. Once the NVC confirms that all the forms, documents and fees have been received, they send the application overseas to the US Consulate listed on the I-140 application for an immigrant visa interview. At this interview it will be important to show that the employer is still willing to employee you at the wage level required and in the position you were sponsored for. Usually this is in the form of a current letter from the employer. Assuming you are able to provide the required documents, the Consulate will issue the immigrant visa. Once issued, you need to enter the US within 45 days. Once you enter the US you are a permanent resident immediately, and will receive a stamp in your passport so indicating. You will receive the actual card in the mail usually within about 30 days.
It is important to keep one thing in mind here, although as soon as you enter the US you are a permanent resident, if you fail to begin working for the employer that sponsored you, this could be construed as fraud and could jeopardize your green card. USCIS looks at your intent here and you want to be careful not to present such a case. We will discuss this issue more in a later blog post.
If you are sponsoring yourself for a green card (National Interest Waiver and/or Extraordinary Ability applications) you also DO NOT need to be in the United Stated to process the I-140 application. You can file the I-140 from overseas and, once approved, receive a green card through the US Consulate in your home country. The process is quite similar to above. The difference being that for the self-sponsored application you do NOT need to present an actual letter from a prospective employer. While that can certainly help, the regulations simply require that you show your intent to continue working in your field. To show intent, you can give a letter of employment, but you could also give emails from others in your field expressing interest in work or collaborating with you, continued publications, presentations or concerts (depending on your area) in your field plus a letter from you indicating your intent to continue working in your field. The possibilities are fairly wide in this regard. The process after approval of your application is the same as discussed above for those being sponsored by employers.
As you can see from the above, it is not only possible to file for, and get permanent residence without being in the United States, it is also just as easy as applying in the United States. It is true that it may take a little longer to get the green card, but for those who are not in the US and who want to come to the US but cannot get (or who do not want to go through the hassle of getting) a temporary visa to work, this can be a very attractive option. Please contact me with any questions or comments.
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