The Market Research Analyst: "How It Works"
We will explore in this article the path to permanent residence for an Australian professional seeking to work in the U.S. The individual, the recipient of a Bachelor's degree in Marketing from a respected Australian university and an experienced Market Research Analyst, wishes to come to the United States to continue work in her field.
During a brief trip to the U.S. to visit a sibling attending school here, the Market Research Analyst is able to arrange an interview with a potential employer. The employer is impressed with her credentials and wishes to offer her a position.
The problem is that her services are needed urgently, and the prospect of waiting weeks or months for approval of a nonimmigrant visa, only to wait several weeks more for approval of a visa application at a U.S. Consulate in Australia and her eventual return, causes the employer to wonder if this situation will meet the company's needs. As the Market Research Analyst would need to return home to prepare for the move and to give two weeks' notice at her current position, a change of status here to another nonimmigrant visa is not an option (and in any case, she entered under the visa waiver program, which does not permit a change to another nonimmigrant status).
The company consults its immigration attorney, who tells the hiring manager about the E-3 visa. This nonimmigrant visa is intended for professional workers such as the Market Research Analyst working in jobs which require at least a Bachelor's degree or the equivalent. This type of visa has the advantage of speed: it is applied for directly at the U.S. Embassy or Consulate abroad without a requirement that the application must first be processed and approved by a Citizenship and Immigration Services office in the U.S.
The company supplies the immigration attorney with the information and documents needed to begin work on the petition and the Market Research Analyst returns to Australia to make preparations, faxing the few remaining documents needed from her once she is there. The attorney forwards a package for filing to the Market Research Analyst, who then makes an appointment at the Consulate nearest her home in Australia for an interview. The interviewing officer reviews and approves the petition and issues a visa stamp that the Market Research Analyst can use to enter the U.S. to begin work.
The Market Research Analyst comes to the U.S. and begins work for the company. Eventually, the company and the Market Research Analyst agree that they both would like the arrangement to become permanent and again consult the company's lawyer. The Market Research Analyst, being diligent and inquisitive, has done some research on the internet already and asks the company's attorney about the possibility of an Outstanding Researcher petition since she is in effect a "researcher."
The immigration lawyer explains that this type of petition is intended for a researcher in an academic discipline. Further, while it is possible to pursue this type of petition for an individual working with a private company, the company must have an established research department which has already achieved documented success in the academic field. The company's immigration lawyer then informs them that the appropriate avenue through which to apply for permanent residence in this situation is through PERM Labor Certification.
Working together, the attorney and the company craft a job description and application documents. They then begin the recruitment process. They arrange for two advertisements to be placed in print media, at least 30 days apart, as well as a job posting at the work site and a job order with the State Workforce Authority in the state where the job is located to run for at least 30 consecutive days. Because this is a professional position, there are additional requirements: at least one of the print ads needs to be in a professional journal, and the employer must undertake at least three other methods of recruitment from a list of specified possible methods.
The employer contacts and interviews all applicants to determine whether they are qualified for the position, keeping extensive records. None of the applicants possess all the qualifications needed for the position, and the attorney uses the employer's records to prepare a detailed statement about the recruitment process. This statement and evidence of all of the recruitment efforts undertaken then become part of the record which the employer maintains.
At the end of the recruitment process, the PERM Labor Certification application is then filed electronically. About three months later, the case is approved. The attorney prepares and files the Immigrant Visa Petition with Citizenship and Immigration Services, but since the case will be in the Third Employment-Based Preference classification and at the time this preference classification in the General category is severely backlogged (no immigrant visas are immediately available), the Application to Adjust Status to Permanent Residence is not filed. This will need to wait until the priority date (the date the PERM Labor Certification application was first received by the Department of Labor) becomes current.
The Immigrant Visa Petition is approved, and the Market Research Analyst, employer and attorney all continue to wait for the priority date of the application to become current for the Third Employment-Based preference class, knowing that there is really no way to determine exactly how long this will take. They will all simply need to keep checking monthly updates to the Department of State's web site in order to see whether the cutoff date has advanced to the priority date of the petition.
During the wait, the Market Research Analyst has another question for the company's immigration attorney: she has become involved in a serious relationship with a U.S. citizen, and wishes to know if the process will go faster if she and her U.S. citizen boyfriend decide to get married.
The attorney explains that a case based on marriage to a U.S. citizen would permit filing of the immigrant visa petition and the application to Adjust Status simultaneously - this type of case would not be subject to a backlog in immigrant visa availability. Assuming that the married couple resides in a location where the local district office takes a reasonable period of time to process such a case (18 months or less), it will almost certainly take less time to obtain permanent residence by using this pathway.
However, the attorney advises that marriage is a serious legal (as well as personal) commitment. While a marriage-based filing is advantageous if the couple is planning to get married in any event, marriage should not be entered into for immigration purposes alone. After serious discussion, the Market Research Analyst and her boyfriend decide to hold off on marriage - at least for the time being. Ultimately, the date for which immigrant visas are listed as available on the State Department web site advances to a date after the Market Research Analyst's priority date. Her Application to Adjust Status to Permanent Residence is filed and 20 months later, approved.
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