Permanent Residency (“Green Card”) Through Employment

While there are numerous pathways to becoming a lawful permanent resident (“LPR”), one of the most common is through employment-based (“EB”) visas. U.S. Citizenship and Immigration Services (“USCIS”) annually authorizes up to 140,000 EB visas. There are five EB visa preference categories. If more than 140,000 foreign workers apply for an EB visa in one fiscal year, the Department of State authorizes visas based on the foreign worker’s preference category, among several other factors.

Each of the five EB visa categories applies to a particular classification of qualifying foreign workers. This article describes the petition used to apply for EB visas (Form I-140, Immigrant Petition for Alien Worker), the Labor Certification process, and the five EB visa categories.

Form I-140

To be eligible for most EB visas, a Form I-140, Immigrant Petition for Alien Worker, must be filed with USCIS. This form requests for USCIS to classify you as an individual who qualifies for an EB visa. USCIS has strict rules regarding the way the form is completed. The petitioner (often the sponsoring employer) must sign the form or USCIS will automatically reject it. Also, only one visa preference category may be selected. If you want to be considered for multiple EB visa categories, multiple Form I-140s must be filed.

Typically, the sponsoring employer files Form I-140. However, in several situations, you may file Form I-140 on your own behalf.

Permanent Labor Certification

Several EB visa categories require you to have a job offer from a U.S. employer prior to filing. Some EB visa categories also require the U.S. employer to obtain an approved labor certification from the U.S. Department of Labor (“DOL”) before submitting a EB visa application to USCIS.

DOL’s labor certification process confirms that:

• there are no available qualified U.S. workers to perform the job at the prevailing wage and
• hiring a foreign worker will not adversely impact the interests of similarly employed U.S. workers.

Obtaining an approved labor certification is the responsibility of your U.S. employer. Your employer will apply through a process called the Program Electronic Review Management (“PERM”). PERM relies on your employer’s attestation that all regulatory requirements have been satisfied, including that your employer made a good-faith effort to recruit qualified U.S. workers, the job requirements are not unduly restrictive, and the job pays the prevailing wage.

The approved labor certification must be submitted to USCIS with a completed Form I-140 within 180 days or it expires.

EB-1: Priority Workers

There are three sub-categories of First Preference EB-1 visas. While none of the EB-1 sub-categories require a labor certification, they all have specific requirements that must be satisfied.

EB-1A: Extraordinary ability in the sciences, arts, education, business, or athletics

You must establish that you have an extraordinary ability and that you will continue working in your area of expertise once admitted to the United States.

To qualify, you must demonstrate sustained national or international acclaim for your extraordinary ability. The evidentiary requirements to prove extraordinary ability are similar to those for the nonimmigrant O-visa. If you have received a prestigious international award like a Nobel Peace Prize or Olympic Medal, you are automatically eligible. Otherwise, you must provide evidence of at least three of the following:

• Receipt of a lesser known award for excellence
• Membership in an association that requires outstanding achievements in the field from all members
• Recognition for your talent in a major publication or the media
• Involvement as a judge for a work related to your expertise
• Significant original contributions to advance your field of expertise
• Publication of your scholarly articles in professional journals or the media
• Display of your work at artistic showcases
• Performance in a leading role for a distinguished organization
• Substantial compensation for your expertise
• Commercial success in the performing arts

You do not need an offer of employment or labor certification to be eligible for an EB-1A visa.

To apply for an EB-1A visa, you may personally file a Form I-140.

EB-1B: Outstanding professor or researcher

To qualify, you must:

1. have earned international recognition for outstanding achievements in an academic field;
2. have three years of teaching or research experience in that field; and
3. pursue a tenure-track teaching or research position at a university or with a private employer.

To prove your outstanding achievements as a professor or researcher, you must provide evidence of at least two of the following:

• Receipt of a major award of outstanding achievement
• Membership in an association that requires outstanding achievements from all members
• Recognition for your talent in a professional publication
• Involvement as a judge for a work of others in your academic field
• Original contribution to scientific or scholarly research in your field
• Authorship of scholarly works in the field

You must provide an offer of employment. However, you do not need to provide labor certification.

To apply for an EB-1B visa, your U.S. employer must file a Form I-140 on your behalf and demonstrate a continuing ability to pay your salary. The employer may use a federal income tax return or similar documents to evidence their continuing ability to pay.

EB-1C: Multinational executive or manager

To qualify, you must have worked for a corporation outside the United States for at least one of the three years prior to submitting your petition. Your work with the corporation must have been managerial or executive and you must be seeking entrance to the United States to continue that work for the same corporation or its affiliate.

The employer must be a U.S. employer and have been doing business for at least one year.

The application process is the same as with the EB-1B visa.

EB-2: Advanced Degree or Exceptional Ability

You may qualify for a Second Preference EB-2 visa if you have an advanced degree or you have an exceptional ability in the sciences, arts, or business. This EB visa category requires labor certification, unless you request a National Interest Waiver.

Advanced Degree

To qualify, your job must require the advanced degree (or its foreign equivalent) in order to perform the position. You may also be eligible under this classification if you have a U.S. bachelor’s degree (or its foreign equivalent) and five years of post-degree work experience in the specialty.

Exceptional Ability

To qualify, you must show that your expertise is significantly above the ordinary level encountered in your field. You must demonstrate your exceptional ability by providing evidence of at least three of the following:

• Official academic record of your degree or certificate
• Letters evidencing ten years of full-time work in your profession
• License to practice your occupation
• Substantial compensation for your exceptional ability
• Membership in professional organizations
• Recognition for your contributions in the field by peers, governments, or professional organizations

To apply for an EB-2 visa, your U.S. employer must file a Form I-140 on your behalf and demonstrate a continuing ability to pay your salary. However, if you are applying for a national interest waiver, you may personally file the Form I-140 on your own.

National Interest Waiver

In certain situations, you may apply for a national interest waiver if waiving the Labor Certification would be in the United States’ interest. If the waiver is granted, you may be eligible for an EB-2 visa without having a job offer.

In applying for a waiver, you must show that:

• your proposed endeavor has substantial merit and national importance;
• you are well positioned to advance the endeavor; and
• it would be in the United States’ interest to waive the requirements of a job offer and labor certification.

The national interest waiver will typically be granted if you have an exceptional ability and your employment would benefit the United States.

EB-3: Skilled Workers, Professionals, and Other Workers

You may qualify for a Third Preference EB-3 visa if you are a skilled worker, professional, or other worker. Your classification is determined based on a variety of factors, including your education, skills, and experience. This EB visa category requires labor certification and a permanent, full-time job offer.

Skilled Worker

To qualify, you must have two years of relevant full-time work experience or training (including post-secondary education). A critical component of this classification is that you must seek to work in a capacity in which there are no available qualified workers in the United States.

Professionals

To qualify, you must have a U.S. bachelor’s degree (or its foreign equivalent) in the area of your profession and the profession must typically require workers to hold the degree. Experience can never be a substitute for having a degree. Like with the skilled worker classification, you must seek to work in a capacity in which there are no available and qualified U.S. workers.

Other Workers (also known as Unskilled Workers)

To qualify, you must be capable of performing unskilled labor in a job requiring less than two years of experience or training. The work must be permanent and full-time and there must be no qualified U.S. workers available.

To apply for an EB-3 visa, your U.S. employer must file a Form I-140 on your behalf and demonstrate a continuing ability to pay your salary.

EB-4: Special Immigrant

You may qualify for a Fourth Preference EB-4 visa if you fit into a special immigrant category. Special immigrants include religious workers, broadcasters, members of the armed forces, and certain physicians. This EB visa category does not require labor certification.

Special Immigrant Religious Workers are individuals working in religious vocations who seek to perform religious work in the United States in a full-time role for pay. Previously, this has included both ministers and non-ministers. However, based on Public Law 116-94, non-minister religious workers will no longer be able to immigrate under Special Immigrant status after September 30, 2020.

To apply for an EB-4 visa, your U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and submit all related evidence for your specific special immigrant classification. In limited circumstances, such as with religious workers, you may be eligible to self-petition.

EB-5: Immigrant Investors

You may qualify for a Fifth Preference EB-5 visa if you are an immigrant investor in a new commercial enterprise. This EB visa category does not require labor certification.

To qualify, you must invest capital in a new commercial enterprise and you must be involved in the enterprise’s management. The new commercial enterprise must create full-time jobs for at least ten people. As of November 21, 2019, the required minimum investment amount is $1,800,000. If the investment is in a targeted rural or high unemployment area, the required minimum investment amount is $900,000.

To apply for an EB-5 visa, you must file a Form I-526, Immigrant Petition by Alien Investor.

Family Members

If you receive an EB visa, your spouse and unmarried children under age 21 may be eligible to live and work in the United States. If your EB visa preference catergory requires labor certification, your spouse will be free to apply for jobs in the United States without undergoing a similar labor certification process.

Approval of EB Visa Applications and Adjustment of Status

Once USCIS approves your EB-1, EB-2, or EB-3 petition and classifies you as a foreign worker eligible for a visa, you do not automatically get a visa. You must wait until a visa is available to you. The State Department Visa Bulletin provides detailed information about when you will receive a visa based on your EB category, your country of chargeability (normally your birth country), and your priority date (the date the State Department uses to determine your place in the visa wait line).

Once you have obtained an EB visa, you may apply for a Green Card to become an LPR. This process is called “adjustment of status.” If you are already admitted to the United States, you may file Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS. If you are outside the United States, you may apply for adjustment of status through consular processing.