Permanent Residency (Green Card) through Employment
If you are an employer looking to bring talent to the United States or an individual looking to immigrate to the United States based on your work qualifications, an employment-based green card might be a good option for you.
The current immigration policy places a cap of 140,000 on employment-based immigrant visas (Green Cards), divided into five preference categories. The most popular are the EB-1 Green Card for applicants with extraordinary ability, EB-2 Green Card for those with an advanced degree, and EB-3 Green Card for Skilled Workers, Professionals, and Other Workers.
EB-1 Priority Workers
The EB-1 Green Card category is for applicants with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; or multinational managers and executives.
This category does not require a PERM Labor Certificate from the Department of Labor (a preliminary requirement for the other two categories). And can be filed independently without a U.S. employer sponsor.
To be eligible for an EB-1 Green Card as a Priority Worker, one must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.
To apply for an EB-1 Green Card as an Outstanding Professor or Researcher, you will need to demonstrate international recognition for your exceptional achievements in a particular academic field. In addition, to apply under this category, you must have at least three years of experience in teaching or research in that academic area. You must also be entering the United States to pursue tenure or tenure track teaching or a comparable research position at a university, higher education institution, or private employer.
To apply for an EB-1 Green Card under the Multi-State Manager or Executive classification, you must show that you have been employed outside the United States for at least one year in the three years preceding the petition for the U.S. petitioning employer. The petitioner must have been doing business for at least one year, have a qualifying relationship to the entity for which you (the employee) worked outside the U.S., and intends to employ you in a managerial or executive capacity.
EB-2 Advanced Degrees or Exceptional Ability
The EB-2 Green Card is for those with an advanced degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus five years of post-baccalaureate, progressive work experience in the field). This category requires an approved PERM Labor Certificate (LC) from the Department of Labor.
The requirement for a PERM might be circumvented if you qualify for a National Interest Waiver. These waivers are usually granted to those who can demonstrate exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer sponsor).
EB-3 Skilled Workers, Professionals, and Other Workers
To apply for an EB-3 Green Card, you must have a U.S. employer and have an approved PERM Labor Certificate. The EB-3 category covers three groups of workers:
To file for an EB-3 green card as a Skilled Worker, you must demonstrate at least two years of job experience, education, or training that meets the job requirements specified on the PERM Labor Certificate. You must also be performing work for which qualified workers are not available in the United States.
To file for an EB-3 green card as a Professional, you must demonstrate that you possess a U.S. baccalaureate or foreign equivalent degree and that a baccalaureate degree is a normal requirement for entry into the occupation. You must also be performing work for which qualified workers are not available in the United States.
Other workers may also file under the EB-3 Green Card if they can demonstrate the ability to perform unskilled labor (requiring less than two years of training or experience), which is not temporary or seasonal, and for which qualified workers are not available in the United States. You must meet any other requirements specified on the labor certification.
The Employment-Based Green Card Timeline
1. Have a U.S. employer
If you are filing for an EB-2 Green Card (without a National Visa Waiver) or an EB-3 Green Card, you must have a U.S. employer willing to sponsor your petition.
Keep in mind that not every job qualifies for a Green Card. If you are already in the United States with a non-immigrant visa, limitations might affect your ability to file for one.
2. PERM Labor Certification Process
Unless you are filing under the EB-1 Green Card or an EB-2 Green Card with a National Visa Waiver, your employer must obtain a PERM Labor Certification from the Department of Labor (DOL) before they can file an I-140 Petition on your behalf. The Labor Certificate allows an employer to hire a foreign worker permanently in the United States.
To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a particular position.
3. I-140 Immigrant Petition for Alien Worker
Employers use the I-140 Petition to ask USCIS to classify an employee as eligible for an immigrant visa based on employment.
The employer generally files the I-140 petition for the employee. Applicants for EB-1 Green Card or EB-2 Green Card with NIV can self-petition.
Premium Processing - USCIS offers premium processing services at an additional fee for Form I-140 petitions. This service promises an initial review from the USCIS within 15 calendar days of receipt of the form, after which it may approve, deny, or issue a Request For Evidence or Notice of Intent to Deny.
Job Portability under INA 204(j) - You may request to change jobs or employers if you:
Are the beneficiary of a pending or approved Form I-140;
Filed a Form I-485, Application to Register Permanent Residence or Adjust Status, and it has been pending for 180 days or more; and
Seek to change jobs to a new job in the same or similar occupational classification.
If you request to change jobs or employers under INA 204(j) while your Form I-140 is pending, the Form I-140 must be approved before USCIS may approve your portability request.
4. I-485 Application for adjustment of status
If you are in the United States, the I-485 Application to Register Permanent Residence or Adjust Status is the second step in the process after the approval of the I-140 Petition.
The I-485 Adjustment of Status Application cannot be filed until the “priority date” is current. Depending on one’s country of birth and Green Card category, there may be a backlog. The backlog exists because more people apply for Green Cards in a given category than available green card visa numbers.
When filing the I-485 Application, you will need to provide information about your family, address, and employment history. You will also need to provide certain documents, including your birth certificate, passport, children’s birth certificates, and I-94 admission form.
In addition to the above, you will also need to submit the following forms:
I-864 Affidavit of Support, filled by the petitioner and supported with the required financial documents.
I-765 Request for Employment Authorization.
I-693 Report of Medical Examination and Vaccination Record.
After you file the application, you will receive a receipt from USCIS showing your priority date. You will be able to use the receipt number to keep track of your case status on the USCIS portal.
5. Consular Processing
The DS-260 Immigrant Visa Electronic Application can only be filed after the approval of the I-140 Visa Petition. After USCIS approves the petition, they will transfer the case to the Department of State's National Visa Center (NVC) for pre-processing. NVC will send you a Welcome Letter by email or physical mail.
The NVC will notify the petitioner and you (the beneficiary) when the visa petition is received and again when an immigrant visa number is about to become available. They will also notify you when you must submit immigrant visa processing fees (commonly referred to as “fee bills”) and supporting documentation.
Once the fees have been paid, you will need to complete the DS-260 Immigrant Visa Electronic Application and submit the supporting documentation by mail or email, depending on the consulate the case is being processed through, to the NVC.
The last step toward your immigrant visa will be an interview at the U.S. Embassy or Consulate. A consular officer will interview you (and accompanying family member beneficiaries) and determine whether you are eligible for an immigrant visa.
If your visa is approved, your passport and visa will be returned. After paying the visa fee, you can travel to the United States. When admitted to the U.S. at the port of entry, you will enter as a Lawful Permanent Resident and be permitted to work and live in the United States.
If you would like to learn more about this topic, please get in touch with our office.