A Lawful Permanent Resident (commonly known as a “green card” holder) is a person who has an immigrant visa that allows them to work and live anywhere in the United States. Being a green card holder is a required step in becoming a U.S. citizen and obtaining a U.S. passport. There are several ways to obtain a U.S. green card and one popular way is through employment-based green card petitions.
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A person can qualify for an employment-based green card no matter where they are currently residing in the world. There are no pre-requisites for the person to be under any type of nonimmigrant visa status (such as an H1B visa) or have an educational degree from a U.S. school. A person who does not have a U.S. degree and has never been to the United States can qualify for an employment-based green card.
The process for most employment-based green card petitions (e.g., EB2 visa, EB3 visa) requires filing a green card petition (Form I-140, Immigrant Petition for Alien Workers) with the U.S. Citizenship and Immigration Services (“USCIS”) and receiving an approved PERM labor certification from the U.S. Department of Labor (“DOL”). An approved PERM labor certification is granted after the U.S. sponsoring employer makes an effort to find U.S. workers to fill the job position but fails to find any qualified U.S. worker to do so.
Usually, after the approval of the green card petition (Form I-140), a person who is already residing in the United States will choose to file a Form I-485 application to adjust their current nonimmigrant visa status to a lawful permanent resident (green card) visa status without leaving the United States. The Form I-485 application (“Application to Register Permanent Residence or Adjust Status”) is only available to people who are already in the United States and have maintained their lawful visa status throughout their stay.
A person already residing in the United States also can choose to file a DS-260 application to change into a lawful permanent resident (green card) visa status by going through consular processing at a U.S. embassy or consulate abroad (usually in the person’s home country). In cases where a person is ineligible for adjusting status in the United States or resides outside the United States, consular processing must be done. Consular processing usually takes place at the U.S. consulate or embassy in the person’s home country, however, under certain circumstances the person can do the consular processing in another country as a “Third Country National.”
An interview for the employment-based green card will be done at a local USCIS office for the adjustment of status or at a U.S. consulate or embassy abroad for consular processing. For a person who is already in the United States adjusting their visa status, the interview approval is the final step in obtaining their green card.
For a person who is outside the United States doing consular processing, the person must physically enter the United States after the interview approval as the final step to obtain their green card. In other words, a person who is doing consular processing to obtain their green card must be admitted by the CBP (“Customs and Border Protection“) officer at the U.S. border (usually done in the secondary inspection room at the airport) for their green card to be issued.
Most employment-based green card petitions are “sponsored” by a U.S. company which means that the green card petition is started and paid by a U.S. employer. However, “self-sponsorship” is still available for investors and certain people who are accomplished in their careers to start and pay for their own green card application.
Common scenarios under employment-based green card petitions are:
- A person sponsored by a U.S. employer through a job offer
- A person with extraordinary or exceptional ability self-sponsoring themselves
- A person self-sponsoring themselves through investing capital in a U.S. business
The main difference between a green card and a temporary work visa (such as an H1B visa, L1 visa, O1 visa, P1 visa, TN visa, E3 visa) is that a green card holder can change their jobs freely among different employers or industries without needing additional filings or approvals from the U.S. government. Also, unlike work visas which only last for a certain amount of time, green cards are permanent so there is no set maximum time on how long a green card holder can stay in the United States.
For example, a person with a green card does not need to file anything new with the USCIS when they change jobs while a person with an H1B visa must have a Change of Employer H1B visa petition filed for them because the H1B visa is tied to the specific U.S. employer that is sponsoring the H1B visa itself.
The immigration and Nationality Act (“INA”) authorizes the USCIS to issue 140,000 employment-based green cards per year. The employment-based immigrant visas are divided into five visa preferences (categories) based on purpose and priority.
The EB1 visa category is for people who are the most professionally accomplished in the sciences, arts, education, business, or athletics. The maximum number of EB1 visas that can be issued in a year is 28.6% of the total employment-based immigrant visas plus the amount of unused EB4 visas and EB5 visas.
The three subcategories in the first preference are:
- EB1A – Persons with extraordinary ability (science, art, education, business, or athletic)
- EB1B – Outstanding professors and researchers
- EB1C – Multinational managers and executives
Green card petitions under the EB1 visa category are one of the fastest ways to get a U.S. green card. The applicants (or beneficiaries) under the EB1 green card petitions are classified as “priority workers” in their occupations and they are given first preference when green cards are issued.
EB1 green card petitions do require a PERM labor certification. Furthermore, the EB1A Extraordinary Ability subcategory does not require a specific sponsoring employer.
Green card petitions under the EB2 visa category are for people who hold professional positions that require advanced degrees or for people who have exceptional ability in the arts, sciences, or business. The maximum number of EB2 visas that can be issued in a year is 28.6% of the total employment-based immigrant visas plus the amount of unused EB1 visas.
The three subcategories in the second preference are:
- Advanced Degree –At least a master’s degree (or its equivalent) is required for the person AND the job position
- Exceptional Ability – Person who has a degree of expertise significantly higher than the ordinary in the sciences, arts, or business
- National Interest Waiver – Person whose employment will significantly benefit the U.S.
- Physicians National Interest Waiver – Doctor who agrees to work for 5 years in a geographical area that has a shortage in medical personnel
EB2 green card petitions require a permanent full-time job offer from a U.S. sponsoring employer and a PERM labor certification unless the foreign worker qualifies for a National Interest Waiver (EB2 NIW).
People who qualify for an EB2 visa can also file a second employment-based immigrant visa petition under the EB3 visa category if the EB3 visas show a more current priority date.
Green card petitions under the EB3 visa category are for people who are professionals whose job requires at least a college degree, skilled workers whose job requires at least two years of training or work experience, and other workers whose job performs unskilled labor. The maximum number of EB3 visas that can be issued in a year is 28.6% of the total employment-based immigrant visas plus the amount of unused EB1 visas and EB2 visas.
The three subcategories in the third preference are:
- Professionals – At least a bachelor’s degree is required for the person AND the job position
- Skilled Workers – At least 2 years of training or work experience is required for the person AND the job position
- Other Workers – Person who can perform an unskilled job that requires less than 2 years of training or work experience
EB3 visa petitions require a permanent full-time job offer from a U.S. sponsoring employer and a PERM labor certification.
Green card petitions under the EB4 visa category are for special immigrants and it is commonly filed for religious workers. The maximum number of EB4 visas that can be issued in a year is 7.1% of the total employment-based immigrant visas (returning Lawful Permanent Residents and persons reacquiring U.S. citizenship are exceptions to this quota).
The numerous subcategories in the fourth preference are:
- Religious workers
- Retired employees or officers of certain international organizations (G-4 or NATO-6 nonimmigrant status) and their family
- Certain broadcasters
- Special immigrant juveniles
- Certain overseas employees of the U.S. government
- Members of U.S. armed forces
- Panama canal zone employees
- Certain physicians (who are licensed and practicing medicine in the U.S. as of Jan 9, 1978)
- Afghan or Iraqi translators, interpreters, or persons who have provided aid to U.S. operations
EB4 green card petitions do not require PERM labor certifications but some do require a sponsoring employer. Religious workers usually have to show a specific U.S. employer, however, they are allowed to self-sponsor the EB4 green card petition.
Green card petitions under the EB5 visa category are for business investors who invest $1.8 million or $900,000 USD (if in targeted employment area) in a U.S. business that creates or preserves at least 10 full-time U.S. employees. The maximum number of EB5 visas that can be issued in a year is 7.1% of the total employment-based immigrant visas (in which 3000 are allocated for target employment areas).
The two subcategories in the fifth preference are:
- Direct Investments
- Indirect Investments – Regional Center Program
EB5 green card petitions are for investors to create employment for U.S. workers and thus have a distinctly different process from other employment-based green cards. EB5 green card applications require filing a Form I-526 petition (Immigrant Petition by Alien Investor) in the initial stage to obtain a 2-year conditional green card. Then, within 90 days of the expiration date of the 2-year conditional green card, a Form I-829 petition (Petition by Investor to Remove Conditions on Permanent Resident Status) must be filed to change the conditional green card into a regular green card.
The majority of employment-based immigrant visas are “employer-sponsored” which means that you would need to have a job offer from a U.S. sponsoring employer and there must be an approved “labor certification” from the U.S. Department of Labor (“DOL”).
The PERM labor certificate is a process where the U.S. employer will have to show their effort in trying to hire available U.S. workers who are qualified for the job position that is offered to the foreign worker. The process includes job offer postings on certain recruitment platforms and interviewing the U.S. workers who respond to the job offer postings. An approved PERM labor certification usually takes a couple of months to complete.
An approved PERM labor certificate should show that:
(1) there is not enough qualified, available, and willing U.S. workers to fill the job position that the foreign worker is being offered (the wage offered should be at least the prevailing wage of the geographical area where the employment will be located), and
(2) the hiring of the foreign worker does not adversely affect the terms of wages and working conditions of similarly employed U.S. workers.
There are exceptions to the common employer-sponsored immigrant visa requirements:
Self-sponsored immigrant visas such as EB-1a (Alien of Extraordinary Ability), EB-2 NIW (National Interest Waiver), and EB-5 (Investor) do not require a job offer from a U.S. sponsoring employer and thus does not need to go through the lengthy labor certification process.
Employer-sponsored immigrant visas such as EB-1b (Outstanding Professors / Researchers), EB-1c (Multinational Manager / Executive), EB2 PNIW (Physicians National Interest Waiver), and EB-4 (Special Immigrant & Religious Workers) still require a job offer from a specific U.S. sponsoring employer but does not need to go through the PERM labor certification process like EB-2 (Advanced Degree / Exceptional Ability) and EB-3 (Professionals / Skilled Workers / Other Workers).
The more popular and commonly known employment-based green cards (e.g., EB2 green cards for advanced degrees or exceptional ability, or EB3 green cards for bachelor degree professionals, skilled workers or unskilled workers) usually require (1) the foreign worker to have a job offer from a U.S. employer that is willing to sponsor their green card and (2) the U.S. sponsoring employer is required to make an effort in recruiting U.S. workers to fill the job position offered to the foreign worker to obtain a required PERM labor certification.
However, there are other employment-based green cards (e.g., EB1 green cards for accomplished professionals, EB5 green cards for foreign investors, EB2 National Interest Waivers for foreign workers who can benefit the United States) that have exceptions to or do not need to satisfy those requirements.
If you have an employment based green card immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify the appropriate visa category for the employment-based green card (e.g., EB2 green card, EB3 green card) and will work closely with the client to formulate an accurate job title and job description to successfully obtain their employment-based green card. It is strongly advised and common practice to retain an immigration attorney for an employment-based green card petition due to the complexities in the immigration process and visa requirements.
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- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued