The job must require a master's degree, and you must keep your status while you wait.
People who studied music, art, or physical education and finished a master's degree ask whether there is a way to get a green card in the United States even if they have never won a major award. Churches and nonprofit organizations that want to hire them also ask what is needed. Even without awards, there is a path in which a U.S. employer applies for a green card for its employee: the employer-sponsored petition. In this article, that employer is called the sponsor. The degree alone is not enough, however, so you need to prepare the conditions of the job, what the sponsor must prove, and your status, meaning your right to stay in the United States lawfully while the process moves forward, all together.
Even without awards, a master's degree and a job that requires it can support an employer-sponsored petition
"Federal immigration regulations state that the job requirements the employer lists in the labor certification application must call for a professional holding a master's degree or higher or its equivalent, or for a person of exceptional ability."
Labor certification (PERM) is the process in which the sponsor proves to the Department of Labor that it could not find U.S. applicants, and this employer-sponsored petition must go through that process. Employment-based green cards are divided into several preference categories depending on qualifications, and the second preference (EB-2) is the category for advanced degree professionals, such as those holding a master's degree or higher. An equivalent degree earned abroad is also recognized. Even without a master's, if you worked in the same field for 5 years or more after receiving a bachelor's degree and your responsibilities grew over that time, the regulations treat this as equivalent to a master's.
The evidence is also set. For a master's, you submit an official academic record from the school showing the degree. If you go the bachelor's-plus-experience route, then in addition to the official record of the bachelor's degree, you must show at least 5 years of experience after the bachelor's and how your responsibilities grew, through letters written by current or former employers.
What is easy to miss is the meaning of the quotation above. The regulations look not only at the person's degree but also at whether the job requires a master's or its equivalent. That does not mean the sponsor only has to list the degree it wants as a requirement. The Department of Labor looks at two things: whether the requirement is at the level normally required in that occupation, and whether it is the actual minimum requirement rather than an inflated one. If the sponsor sets a requirement higher than the normal level, it must separately prove why the job needs it. If the foreign employee already works for the organization, the sponsor may require of U.S. applicants only the training or experience the employee had when first hired.
There are separate paths based on awards or renown. The regulations also provide an extraordinary ability category (EB-1A) that covers the arts and athletics, and there is the National Interest Waiver, which works without a job offer or labor certification on the ground that the person benefits the national interest of the United States. These two paths differ from the employer-sponsored petition covered in this article in that they proceed without labor certification, and the religious worker green card is also a separate category.
The sponsor must prove the U.S. recruitment steps and its ability to pay the wage
"Federal immigration regulations state that the employer must show its ability to pay the proffered wage continuously from the time the priority date is established until the foreign worker obtains permanent residence."
The priority date is your place-in-line date in the green card queue, and in this kind of petition it is the date the Department of Labor received the labor certification application. To obtain labor certification, the sponsor must recruit in the prescribed ways within the 6 months before filing.
There are two required steps. The sponsor places a job order with the State Workforce Agency of the state where the job is located for 30 days, and runs advertisements on two different Sundays in a general newspaper in the area of the job. These two steps must be done between 180 days and 30 days before filing. In addition, the sponsor chooses three items from a list that includes job fairs, the employer's website, and job search websites, and carries out additional recruitment. One of the additional recruitment steps may be done within the 30 days before filing. If the job requires both a master's degree and experience and is the kind of position normally advertised in a professional journal, one of the Sunday advertisements may be replaced with an advertisement in a professional journal. The recruitment records are kept and submitted if the Department of Labor audits or requests them.
The sponsor also proves its ability to pay the wage. Churches and nonprofit organizations must also show it with one of the following: annual reports, federal tax returns, or audited financial statements, and if needed they may submit additional profit-and-loss statements, bank records, or personnel records. Because churches are not required to file federal tax returns and may not have them, they should prepare annual reports or audited financial statements in advance. This ability is not checked only on the priority date; it must continue until the green card is obtained, so check from the start whether the sponsor's finances will hold up to the end.
Labor certification review alone takes nearly a year on average, so plan your status for the waiting period first
"Immigration law provides that a person applying inside the United States for an employment-based green card cannot receive adjustment of status if they are not maintaining lawful nonimmigrant status."
Adjustment of status in the quotation above is the process of changing to permanent resident status inside the United States, and nonimmigrant status is a status for staying for a set period, such as for study or work. Unlike a marriage green card for the spouse of a U.S. citizen, an employment-based green card requires lawful status when you apply for adjustment of status. The exception that excuses a brief lapse in status is narrow. You must have entered lawfully and be in the United States on the day you apply, and the periods after entry in which you failed to maintain status, worked without authorization, or otherwise violated the terms of your admission must not add up to more than 180 days.
The first step of the employer-sponsored petition is the prevailing wage determination. It is the process in which the Department of Labor sets the wage the sponsor must pay, and according to the Department of Labor's processing status, as of the end of August it was processing requests filed in May of this year. Labor certification review, as of September 22, was processing applications received in December of last year, and the average processing time in August was 336 days. After that comes the petition the sponsor files with USCIS (Form I-140), and if you apply inside the United States, the last step is the application to adjust status (Form I-485).
So before starting labor certification, you must first plan a status that will bridge the waiting period, such as post-graduation practical training (OPT) or a work visa. For arts and sports majors, post-graduation OPT is usually 12 months, and the 24-month extension exists only for science and engineering (STEM) degrees, so it may not cover even the labor certification stage. If the paperwork is ready only after your status has lapsed, the path to applying inside the United States may be closed.
You also need to check the Visa Bulletin. This chart, published monthly by the Department of State, shows which categories of people are now eligible to receive a green card. The September bulletin shows no wait for the second preference except for some countries such as China and India, while the third preference (EB-3), which does not require a master's, has a wait, so your turn comes only when your priority date is earlier than the date in the bulletin (the Final Action Date). The bulletin for October, when the U.S. government's new fiscal year begins, had not been released as of September 24. Because the bulletin changes every month, you cannot assume that having no wait now will last until you apply.
Look at the current regulations and your own timeline before announced changes to the system
"The title of the proposed rule the Department of Labor published in the Federal Register on March 27 is 'Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States.'"
The Federal Register is where the government officially publishes new rules, and this proposed rule seeks to change the wage standard for foreign employees. The Department of Labor has announced two overhauls: this wage standard and the labor certification process. For the labor certification overhaul, the government's regulatory agenda listed a proposed rule for July, but as of September 24 it had not appeared in the Federal Register. For the wage standard overhaul, the comment period on the proposed rule closed on May 26, but there is no final rule yet. If it is finalized, the wage the sponsor must pay could rise, but how much will be known only then; for now, the current regulations apply. However, under the Department of Labor's proposed rule, the new standard would apply to prevailing wage determination requests the Department is reviewing on the effective date, and would not apply to wage determinations already issued or labor certifications already approved.
Before that, you should put together a timeline showing when your status ends and how labor certification and the later steps fit within it. In the May 21 USCIS policy memo, USCIS said that approval of adjustment of status is decided by weighing a range of circumstances. It also wrote that having maintained a status that continues even after a green card application is filed, such as a work visa, is not by itself enough reason for approval.
Closing thoughts
There are three things to do now. First, prepare the official record of your degree; if it is a foreign degree, gather materials showing it is equivalent to a U.S. degree, and if you are going the bachelor's-plus-experience route, also gather experience letters from current or former employers. Second, check the following with the church or nonprofit organization that will be your sponsor: whether the degree requirement for the position is at the level normally required in that occupation, whether it has financial documents showing it can pay the wage from the priority date until you obtain the green card, and when it will place the state job order and run the Sunday newspaper advertisements. Third, write down the date your current status ends and, keeping in mind that labor certification review alone takes nearly a year on average, start with a status plan for how to bridge that period with post-graduation OPT or a work visa. Even without awards there is a path, but your degree, the job, and your status must fit together for you to get all the way through.
Frequently Asked Questions
Q. Can an arts or sports master's graduate who has never won an award apply for an employment-based green card?
If you have a master's degree and a job that requires that degree, you can apply in the second preference (EB-2) through an employer-sponsored petition. Even without a master's, 5 or more years of experience in the same field after a bachelor's degree, with growing responsibility, is treated as equivalent to a master's. However, the job's degree requirement must be at the level normally required in that occupation, and if it is higher, business necessity must be proven separately.
Q. What does a church need in order to sponsor an arts or sports major for a green card?
First, for labor certification (PERM), it must carry out a 30-day state job order, two Sunday newspaper advertisements, and three additional recruitment steps within the prescribed periods. It must also show its ability to pay the offered wage continuously from the priority date until the green card is obtained, with one of the following: annual reports, federal tax returns, or audited financial statements. Because churches are not required to file federal tax returns and may not have them, they should prepare annual reports or audited financial statements in advance.
Q. What should I do about my status while waiting for labor certification?
According to Department of Labor data, the average processing time for the initial labor certification review in August was 336 days. An employment-based green card requires lawful status when you apply for adjustment of status, and the exception is narrow: it applies only when periods of status violations total no more than 180 days. For arts and sports majors, post-graduation OPT is usually 12 months, and the 24-month extension exists only for science and engineering (STEM) degrees, so you should first plan how to bridge the gap with a work visa or other status.
Disclaimer: This column provides general information and is not legal advice for a particular case. Individual immigration matters should be discussed with a qualified immigration attorney.
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