Basics of the Employment-Based Green Card Process in the United States

The United States receives more immigrants than any other country in the world. In fact, approximately 17% of the American workforce is foreign-born according to the U.S. Bureau of Labor Statistics. While there are multiple ways in which people may be eligible to live and work in the United States as permanent residents (green card holders), many people qualify through employment. Foreign nationals are able to obtain an employment-based green card when they have a job offer from a U.S. based employer or they can prove they have what is called “extraordinary ability” to come to the U.S. and continue developing their craft.

Many of the people who become eligible for employment-based, or EB immigrant visas, first come to the U.S. with a nonimmigrant, employment-based visa. (A nonimmigrant visa is a temporary visa.) The most common one is the H-1B, issued for workers in “specialty occupations.” These can be renewed, but employers may also opt for applying for a more permanent EB visa that opens a path to permanent residency.

RECOMMENDED: Types of Work Visas

The U.S. government grants approximately 140,000 visas each fiscal year for employment-based immigrants and their families. There are five preference categories of employment-based green cards divided primarily based on the applicants’ experience, skills and abilities. Each green card type is specific to the kind of workers they admit and the preference each of these visas receive during processing.

EB-1: People of Extraordinary Ability

Extraordinary ability is a rather broad term that includes three categories: multinational executives and managers, professors and researchers, and the general “extraordinary ability” general category, where applicants have to demonstrate their ability through national and international acclaim in business, the arts, science, education, or athletics. Some examples of people who could be eligible for this type of visa could include academics who’ve won important awards such as the Nobel Prize, researchers pursuing tenure in American universities, and famous artists that can prove their international recognition.

The most important aspect of this visa is that those eligible in some categories don’t need a job offer, just evidence of their outstanding ability, like winning an Oscar. Others in this category do need a job offer, for example, a professorship on a tenure track, or a manager/executive position from an American employer that has operated in the U.S. for at least a year.

One of the differences between this visa and the non-immigrant H-1B, for example, is that employers don’t need to complete the labor certification process – meaning, employers extending offers under this category are not required to prove that there aren’t others in the American job pool that could do the job.

The evidence that accompanies these applications goes more along showing that your work as a person of outstanding ability is truly outstanding and is recognizable in your field. Some examples of evidence could be publications, art exhibits, awards and recognitions from organizations in their field.

EB-2: Advanced Degree Holders

The EB-2 category probably covers the largest number of people that are potentially eligible to apply for an employment-based green card. Many H-1B visa holders, who have advanced degrees or a bachelor’s degree with relevant professional experience, are eligible for the EB-2 green card. A job offer from a qualified employer is also required.

There are three different sub categories of the EB-2 visa in which you may qualify for eligibility:

• Advanced Degrees and/or Relevant Experience

  This means either a master’s or doctorate (or foreign equivalent), or a bachelor’s degree with relevant professional experience.

• Exceptional Ability

  The ability should be in the arts, science, or business. No specific degree required. That level of expertise needs to be “above average,” although USCIS doesn’t specify what that level of ability looks like. This is where evidence of said ability is important. There are seven criteria USCIS establishes, out of which candidates need to meet at least three. (See all criteria.)

• National Interest Waiver

  This category of employment-based green card is granted to professionals whose work is considered in the national interest. In other words, the National Interest waiver covers work that benefits the United States, regardless of whether the ability is extraordinary or not. To qualify for the National Interest waiver, the work performed must have “substantial merit and national importance,” and be of benefit to the United States.

The National Interest waiver has attracted more attention during the COVID-19 pandemic, as it’s being applied for researchers and healthcare professionals who are either developing treatments or vaccines in the United States. Even at times when employment-based visas were brought to a halt, national interest waiver applications were still considered in order to bring people that could advance treatment and vaccine efforts to the U.S. during the pandemic.

EB-3: Skilled Workers, Professionals, or Other Unskilled Workers

This category includes a variety of individuals with different levels of education, skills, and professional competencies. All the categories under which an applicant would receive an EB-3 visa do require a job offer and labor certification from your employer. Your job offer also needs to be for full-time work; seasonal or temporary workers don’t qualify for this kind of visa.

Here are the three large categories under which people can receive an EB-3 visa:

• Skilled Workers

  As part of the labor certification process, your employer has to show there are no other potential employees in the United States that could do this work. You also need to have at least two years of education, experience, or training. Education can be any post-secondary education. It doesn’t have to be at the college or university level.

• Professionals

  In this category, you have to show that typically, those in your line of work need a bachelor’s degree. Work experience doesn’t replace education, like in other categories. Same labor certification requirements apply.

• Other (Unskilled)

  Work is considered unskilled if it requires less than two years of training or experience. The most important aspect of an employment-based green card application in this category is that work you’ll be doing has to be full time. Labor certification requirements still apply for this category – your employer needs to prove that there are no other workers in the United States that can do the same job.

EB-4: Certain Special Immigrants

The employment fourth preference (EB-4) is a much different type of category and will not be covered in detail for the purposes of this overview. The U.S. government uses this category for a broad variety of special immigrants from employees of the U.S. government abroad to religious workers.

EB-5: Immigrant Investors

The EB-5 is an equally unique category of employment-based green card. Immigrant investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation. Qualification requires a substantial, minimum capital dollar investment and job growth for U.S. citizens.

How to Start the Employment-Based Immigrant Visa Process

Unless you meet the requirements of an EB-1 immigrant visa, you’ll need an American employer to sponsor you. (EB-4 and EB-5 also have their own unique petitions.) The employer must submit Form I-140, Petition for Alien Worker, with USCIS. If you are applying for an EB-1 visa or under the National Interest Waiver, you can file on your own. As part of this process, your employer needs to prove they can pay your wages as part of your application.

PERM

However, before an employer can file Form I-140, they must make sure that no other U.S. workers can fill the position. They do this by filing a PERM application. The PERM – Program Electronic Review Management — system is the process for managing this paperwork with the American government. In short, the PERM process helps ensure that:

• The current pool of U.S. workers (U.S. citizens, permanent residents, and other specially authorized aliens) has no one that is qualified, available and willing to perform the position; and
• The salary offered is reasonable in the current labor market (prevailing wage determination).

PERM labor certification protects U.S. workers but also protects the H-1B green card prospect from artificially lowered wages.

Visa Bulletin

Once the employer clears the PERM process and successfully files Form I-140, the beneficiary gets a “priority date.” The priority date marks your “place in line.” Employment-based green cards are subject of a numerical cap every fiscal year. In the EB category, every visa that isn’t awarded from the first two categories is rolled over to the one below. There are also per country limits. Thus, this can lead to a long wait for some individuals.

The immigrant visa (green card) is available once an priority date becomes current. To communicate which petitions are coming current, the U.S. Department of State issues a monthly visa bulletin. Once the petition becomes current, you may actually apply for the employment-based green card.

RECOMMENDED: How to Read the Visa Bulletin

How to Apply for an Employment-Based Green Card

Once USCIS approves the I-140 petition and the priority date is current, you’ll be ready to apply for the green card. From here, the process for applying generally depends on your location. Applicants who are outside the United States, must use consular processing. While applicants inside the United States through a lawful entry have the option of adjusting status.

Consular Processing

The National Visa Center (NVC) will begin pre-processing your case by sending you instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that you submit the necessary immigrant visa documents, including application forms, civil documents, and more. Learn more about National Visa Center visa case processing.

Adjustment of Status

If you are physically present inside the United States through a lawful entry, you can typically adjust status to your employment-based green card status.

Adjustment is a common option for individuals working in U.S. on a temporary work visa like the H-1B, L-1 or TN. You can submit the application in the U.S. and remain here while it is processing. The typical employment-based green card application package includes:

• I-485, Application to Register Permanent Residence or Adjust Status
• I-693, Report of Medical Examination and Vaccination
• I-765, Application for Employment Authorization (optional)
• I-131, Application for Travel Document (optional)

Submitting an adjustment of status package will also involve submitting several supporting documents. Filing your application without support can result in time consuming delays and costly errors. CitizenPath walks you through the application step by steps and not only points out potential errors, but provides instructions on how to fix them! Get started on your adjustment of status with CitizenPath today and pay when you’re finished. And with our money-back guarantee, you have nothing to lose.

RECOMMENDED: Overview of the H-1B Green Card Process

If you’re applying for adjustment of status, using an online platform that guides you through every step of the way and checks your application for errors can be the difference between a smooth process and, well, not so smooth processing. CitizenPath guarantees your forms will be accepted by USCIS or you get your money back. That way, you start and end your process in the most straightforward way possible. Get started with your Adjustment of Status application on CitizenPath.

Family Members Welcome

Those who receive an employment-based green card may generally bring their immediate family members with them. Immediate relatives cover spouses and unmarried children under 21 years of age. However, those visas are considered part of the numerical cap of employment-based visas each year. So just because there is a visa number available for a prospective worker, that doesn’t mean there will be visas for all his or her family members in the same year.

If you’re adjusting status from an EB-visa and meet all requirements, a visa number is available to you immediately. Your family members can still apply for derivative permanent residency based on your application, which is considered the principal application.