All employment based permanent residency petitions must be processed by the Office of International Programs with approval from the individual's department, college and Academic Affairs.
Western Kentucky University (WKU) policy requires that all faculty members work one year before their department is eligible to request sponsorship on the individual's behalf. All professional staff members must work 120 days before their department is eligible to request sponsorship on their behalf. Exceptions to this policy may only be granted by the Office of Academic Affairs.
WKU can sponsor any full time permanent faculty or professional staff position for permanent residency. The term "permanent" is not defined in either the Immigration & Nationality Act or Department of Labor regulations. However, the Board of Alien Labor Certification Appeals has held that "Permanent employment is indefinite employment of a lasting and continuous nature – within the expectations of any typical job offer. An employer that has no intention to continue the employment of the immigrant beyond a set term of years cannot have the requisite intent."
Overview of Employment Based Permanent Residence Options
EB-1 Workers with Extraordinary ability (Generally highly skilled workers of unique and
EB-1 Outstanding Professors or Researchers
EB-2 Professional with advanced degrees
EB-2 Aliens of exceptional ability in the sciences, arts or business
EB-3 Skilled workers
EB-3 Unskilled workers
The Office of International Programs recommends departments and Foreign Nationals first consider EB-2 or EB-3 applications. EB-2 & EB-3 applications are a 4 step process requiring a P.R. prevailing wage, PERM Labor Certification, I-140 petition and an I-485 petition.
P.R. Prevailing Wage: WKU must request a P.R. (Permanent Resident) prevailing wage determination from the Department of Labor (DOL) as the first step in the process. OIP will make this online request upon notification by the department of intent to sponsor an international employee for permanent residency. Prevailing wages are based on the job qualifications and requirements. A prevailing wage determination can take 2-3 months.
Permanent Labor Certification
Special Handling PERM
The Special Handling PERM category is for Higher Education Teachers holding permanent
positions. In general, the DOL requires that the employer have undertaken a professional,
competitive recruitment effort with at least one advertisement placed in a national
professional journal no more than 18 months prior to the PERM Labor Certification
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 posted in a professional journal likely to be viewed by people qualified for the position; and
3) The international employee hired was the best qualified person for the position in the recruitment pool.
WKU is required to show that we could not find a ready, willing and able US worker that met the minimum job qualifications for the position held by the international worker. Regular PERM Labor Certifications must be filed within 180 days from the advertisement of the position. Standard procedures require 5 separate advertising methods be used. OIP will work closely with departments to ensure the DOL required recruitment procedures are followed. If the department is unable to find a ready, willing and able US worker for the position, OIP will be able to file the PERM labor certification application online with the Department of Labor. If the department in the recruiting procedures finds a ready, willing and able US worker, OIP will not be able to file the PERM labor certification application and the process will stop. In this instance, OIP will discuss further permanent residence options with the department and the international employee.
The PERM Labor Certification process can take 6-8 months if no audit is request by the DOL. DOL attempts to audit 30% of all submitted Perm Labor Certifications. Audits can be targeted or random. Perm Labor Certification selected for an audit can take more than a year to complete.
I-140 Petition: After the PERM labor certification is approved, OIP will immediately work on filing the second step of the application, the I-140 petition. This petition is filed directly with U.S. Citizenship & immigration Services (USCIS). With the I-140 petition, OIP provides documents to show that WKU is offering a permanent position to a nonimmigrant employee; that the nonimmigrant employee met the minimum requirements of the position before coming to WKU; and that WKU has the financial ability to pay the offered salary. This petition can take a couple of weeks to prepare and, once filed, takes about 2-6 months to be approved.
I-485 Petition (Adjustment of Status): The I-485 is the final step for all permanent residence processes. The I-485 is a personal application and, therefore, OIP cannot prepare this petition on behalf of a WKU employee. Employees filing the I-485 petition may hire an immigration attorney to represent them in the filing or self-petition.
The I-485 approval will occur after the I-140 has been approved. Once the I-485 is approved, the employee will receive the permanent residence card (I-551) in the mail, at the address provided on the I-485 form. Employees must contact the International Legal Affairs Specialist as soon as the permanent residence card is received so that immigration and I-9 records can be properly updated.
Important Notice: Persons who have been out of status, failed to maintain status, or in violation of status (including unauthorized employment) for at least 180 days cannot obtain permanent residence (file an I-485) under the employment based categories EB-1, 2, or 3. If you are not sure if you have been out of status or otherwise failed to maintain status, please contact our office before the I-140 petition is filed.
EB-1 Outstanding Professor or Researcher: The Outstanding Researcher/Professor petition is a two-step process involving the filing of the I-140 (immigrant petition) and the I-485 (adjustment of status) only. No prevailing wage or PERM labor certification filing with the DOL is required. This category requires WKU to establish that the researcher or professor is internationally recognized as outstanding in the professional field of expertise specified in the petition. 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.
1. The individual is recognized internationally as outstanding in a specific academic
2. The individual has at least 3 years of experience in teaching or research in the academic area.
3. The alien seeks to enter the U.S:
i. For a tenured position ( or a tenure-track position) within a university or institution
of higher education, or
ii. for a comparable position with a university or institution of higher education to conduct research in the area.
Documentary Evidence That A Person is an Outstanding Professor Or Researcher
Regulations specify that evidence must be presented in at least two of the following categories, to prove that the individual is internationally recognized as outstanding in the academic field:
Outstanding Researcher/ Professor I-140 petitions are filed with USCIS. Once filed they generally take about 3-6 months to be processed. For this petition, all employees (including citizens of China and India) may file the I-485 application either concurrently with the I-140 petition or after the I-140 is approved.
EB-1 Extraordinary Ability: 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 prevailing wage or PERM labor certification filing with the DOL is required. This category requires that WKU establish that the employee internationally is recognized as extraordinary in the professional field specified in the petition. In addition every applicant must show at least 3 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 is higher than that of all other categories.
"Extraordinary ability means a level of expertise indicating that the individual is one of that very small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. section 204.5(h)(2)
EB-1 Extraordinary Ability requires: That the individual demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required.
Evidence: The petitioner must meet 3 of 10 criteria* below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal, Nobel Peace Prize)
You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:
The Statutory Criteria: (INA § 203(b)(1)(A))
(i) The alien has extraordinary ability in the sciences, arts, education, business,
or athletics which has been demonstrated by sustained national or international acclaim
and whose achievements have been recognized in the field through extensive documentation,
(ii) The alien seeks to enter the U.S. to continue to work in the area of extraordinary ability, and
(iii) The alien's entry into the U.S. will substantially benefit prospectively the U.S.
(iv) 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 USCIS. Once filed they generally take about 3-6 months to be processed. For this petition, all employees (including citizens of China and India) may file the I-485 application either concurrently with the I-140 petition or after the I-140 is approved.
Further Immigration Information
Department Specific Information