Employment-based Green Cards

Types of Employment-Based Green Cards

There are five categories of employment-based (EB) green cards. In total, there are usually 140,000 employment-based green cards available each year. Each EB preference type is allotted a specific number of green cards, with the higher preferences given more (so EB-1 has more green cards available than EB-5).

EB-1 First Preference

The EB-1 green card category encompasses those with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational managers and executives. The EB-1 green card doesn’t require PERM labor certification, allowing employers and qualified individuals to apply directly with the U.S. Citizenship and Immigration Services (USCIS) (see Step 2 in the Steps to Obtain an Employment-Based Visa section below).

EB-2 Second Preference

The EB-2 green card category is for individuals who possess advanced degrees or exceptional ability in their field. In many EB-2 cases PERM labor certification (see Step 1 below) is required, unless the individual qualifies for a National Interest Waiver (NIW). The EB-2 category also encompasses Schedule A Group I professionals which include Physical Therapists and Registered Nurses.

EB-3 Third Preference

EB-3 includes Skilled Workers, Professionals, and Other Workers. Skilled Workers are individuals whose positions require a minimum of two years of training or experience. Professionals are persons whose position requires a U.S. bachelor's degree or foreign equivalent. Other workers are individuals performing unskilled labor whose positions require less than two years training or experience.

EB-4 Fourth Preference

EB-4 green cards are for Special Immigrants. They include permanent religious workers, Special Immigrant Juveniles (SIJ), and Violence Against Women Act (VAWA) recipients.

EB-5 Fifth Preference

The EB-5 green card Immigrant Investor Program allows certain foreign investors and their dependent spouses and unmarried children under 21 to obtain green card status through investment.

The USCIS offers detailed information on the different types of employment-based visas, the sub-groups, visa availability, eligibility requirements, and more. The Visa Bulletin provides important dates based on green card type.

Steps to Obtain an Employment-Based Green Card

 This is a very high level overview of how to obtain green card status through employment. Each step has multiple sub-steps, forms, requirements, key dates, timelines, and deadlines. The good news is that we know all of that, because we’re experts in employment-based immigration, so our clients don’t have to be!

1. PERM Labor Certification

The labor certification process is commonly referred to as PERM. PERM stands for Program Electronic Review Management (PERM). This is the electronic online system used by the U.S. Department of Labor (DOL) for submission of PERM labor certification applications by U.S. employers.

The requirements for PERM labor certification are quite strict. Notably, employers must prove that there are no qualified U.S. workers available and willing to do the job. To prove this element, there are a variety of recruitment methods employers must undertake and properly document, even before submitting their PERM labor certification application to DOL.

Under law, employers are responsible for paying all fees and costs related to PERM labor certification; the foreign national employee cannot pay these costs on behalf of the company. Finally, the position offered by the employer must meet or exceed prevailing wage requirements as determined by the Department of Labor. An official Prevailing Wage Request (PWR) must be filed with DOL, which can take several months to process before a Prevailing Wage Determination (PWD) is issued. A PERM labor certification application cannot even be filed unless an official Prevailing Wage Determination has been issued by DOL.

While a PERM application is pending, DOL can issue an Audit Notification letter requesting specific evidence of each recruitment effort and a summary of the recruitment results, which includes the lawful reasons for rejection of U.S. applicants. A PERM Audit Notification is commonly triggered by certain items in the PERM application itself including, but not limited to, the minimum stated education and/or experience requirements, foreign language requirements, and the foreign national’s ownership of the employing entity. Audit Notifications questioning the minimum stated requirements for the offered position typically request business necessity evidence to prove the requirements are truly necessary to perform the job in question.

After filing the PERM application, employers typically wait between several months to get a decision, although processing times fluctuate based on conditions at DOL. If the PERM application is approved, a Labor Certification is issued, and what’s known as a Priority Date is given. A Priority Date represents the foreign employee’s place in line for a green card, because there are typically more green card applications than the number of green cards available.

EB-1 and certain EB-2 visa applicants (for example, those with a National Interest Waiver) skip this step.

2. USCIS Petition

Once the DOL approves the PERM Labor Certification application, the next step is to file the I-140 immigrant petition with USCIS. At the I-140 stage, employers must demonstrate its “ability to pay” the offered salary to the foreign national, and how the foreign national is qualified for the position (i.e., possesses all stated minimum requirements for the position prior to the filing of the PERM application with DOL).

If approved, as long as an immigrant visa or green card number is available according to one’s Priority Date, the foreign national can move on to step 3, which is either applying for adjustment of status (if in the U.S.) or applying to a U.S. consulate abroad (if outside the U.S.).

If at the time the PERM is certified by DOL, one’s Priority Date is “Current,” and there is a green card number available for the applicable employment-based green card category, Step 2 and Step 3 (specifically adjustment of status only) can be filed concurrently with USCIS.

3. Adjustment of Status or Consular Processing

This is the final step for obtaining green card status/permanent residence. Foreign nationals and their dependent spouses and unmarried children under 21 in the U.S. will file their I-485 adjustment of status applications with USCIS (applications typically also include an I-765 application for work authorization and I-131 application for advance parole travel document).

Foreign nationals and their dependents located outside the U.S. will file their DS-260 immigrant visa applications with the National Visa Center (NVC) along with other required supporting documents, eventually leading to an immigrant visa/green card interview at the U.S. embassy/consulate in their home country.