Employment-Based Immigration

What is Employment-Based Immigration?

U.S. Employment-Based Immigration refers to the process through which foreign nationals come to the United States to work and live based on their employment qualifications, skills, and job offers. It is a pathway for individuals from other countries to legally obtain permanent residency (green card) in the U.S. through employment.

The U.S. government has established 5 different categories within the employment-based immigration system to accommodate individuals with different levels of skills, qualifications, and work experience.

The employment-based immigration categories are divided into preference levels, often referred to as “EB” categories:

• Highly Skilled Workers (Priority Workers or EB-1 Category): This category often includes individuals with exceptional talents, outstanding achievements in their field, or those who hold advanced degrees and are at the top of their profession.
• Professionals with Advanced Degrees or Exceptional Abilities (EB-2 Category): This category typically covers individuals with advanced degrees or significant achievements in their field, and who are considered to possess exceptional abilities.
• Skilled Workers, Professionals, and Other Workers (EB-3 Category): This category includes a broader range of skilled workers, professionals, and other workers who may not necessarily have advanced degrees but possess relevant qualifications and skills.
• Special Immigrants (EB-4 Category): This category is for individuals such as religious workers, certain international employees of the U.S. government, and other special cases.
• Investors and Entrepreneurs (EB-5 Category): Some countries have programs that allow foreign investors and entrepreneurs to obtain green cards by making significant investments in the U.S. economy.

Types of employment-based green cards

In the United States, employment-based green cards are divided into five preference categories, often referred to as “EB” categories:

1. EB-1 Priority Workers

EB-1 Priority Workers is a category within the U.S. employment-based immigration system that is designed for individuals with extraordinary abilities, outstanding professors and researchers, and multinational executives or managers. This category is considered a high-priority path to obtaining a U.S. green card due to the exceptional nature of the individuals it encompasses.

The EB-1 Priority Workers category is divided into three subcategories:

• EB-1A – Extraordinary Ability: This subcategory is for individuals who possess extraordinary abilities in their respective fields, such as science, arts, education, business, or athletics. To qualify, an applicant must have sustained national or international acclaim, as demonstrated by recognized achievements and extensive documentation. This category is intended for individuals who have risen to the very top of their profession.
• EB-1B – Outstanding Professors and Researchers: This subcategory is for individuals who are internationally recognized as outstanding in their academic field. To qualify, applicants must have at least three years of experience in teaching or research and must be entering the U.S. in a tenure-track teaching or a comparable research position at a university or other institution of higher education.
• EB-1C – Multinational Managers or Executives: This subcategory is for managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of a U.S. employer. These individuals are coming to the U.S. to continue their employment with the same employer, or a subsidiary or affiliate, in a managerial or executive capacity.

The EB-1 Priority Workers category has several advantages, including a more streamlined application process and the absence of a labor certification requirement for some applicants (a process that demonstrates that there are no qualified U.S. workers available for the job). Additionally, unlike other employment-based green card categories, there is no annual numerical limit for EB-1 Priority Workers, which means that the category is generally not subject to the same backlogs and delays as some other green card categories.

It’s important to note that the EB-1 category is highly competitive and is reserved for individuals who have truly exceptional qualifications and achievements in their respective fields. The application process involves gathering extensive documentation to prove the applicant’s eligibility and standing in their field.

2. EB-2 Professionals with Advanced Degrees or Exceptional Ability

The EB-2 (Employment-Based Second Preference) category is designed for professionals with advanced degrees or individuals with exceptional ability in their respective fields. This category allows these individuals to seek permanent residency (green card) in the United States based on their qualifications and skills.

The EB-2 category has two primary subcategories:

• EB-2 Professionals with Advanced Degrees: This subcategory is for individuals who have earned an advanced degree (master’s, Ph.D., or equivalent) and have a job offer from a U.S. employer that requires an advanced degree for the position. The job offer must be accompanied by a labor certification approved by the U.S. Department of Labor (unless the requirement is waived due to the national interest, also known as a NIW).
• EB-2 Individuals with Exceptional Ability: This subcategory is for individuals who have exceptional ability in their field, which must be significantly above the average level of expertise. This ability can be demonstrated through accomplishments and recognition in the form of awards, publications, memberships in professional associations, or other comparable achievements. Similar to the advanced degree subcategory, a job offer and a labor certification (or national interest waiver) are generally required.

A key feature of the EB-2 category is the possibility of obtaining a “National Interest Waiver” (NIW) for the labor certification requirement. This waiver allows applicants to bypass the labor certification process if their work is deemed to be in the national interest of the United States. This is particularly relevant for individuals with exceptional abilities or those engaged in work that benefits the country in areas such as healthcare, education, research, and other critical fields.

The EB-2 category is subject to annual numerical limits and can face backlogs in certain cases, particularly for nationals of countries with high demand for green cards (Indian and Chinese nationals). However, beneficiaries of approved EB-2 NIW petitions generally have the benefit of a more streamlined application process and the potential to self-petition (i.e., without the need for a specific job offer).

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

The EB-3 (Employment-Based Third Preference) category encompasses skilled workers, professionals with bachelor’s degrees, and other workers with less formal education and experience. This category is designed to provide a pathway for foreign nationals to obtain permanent residency (green card) in the United States based on their employment qualifications and skills.

The EB-3 category is divided into three main subcategories:

• EB-3 Skilled Workers: This subcategory is for individuals with at least two years of job experience or training that is not temporary or seasonal. The job for which they are applying must require a minimum of two years of training or experience.
• EB-3 Professionals: This subcategory is for individuals with a bachelor’s degree or foreign equivalent degree, and the job for which they are applying must require a bachelor’s degree as a minimum qualification.
• EB-3 Other Workers: This subcategory is for individuals performing unskilled labor requiring less than two years of training or experience. These jobs must not be temporary or seasonal in nature.

In the EB-3 category, a U.S. employer generally needs to sponsor the foreign worker by obtaining a labor certification from the U.S. Department of Labor. This process is meant to demonstrate that there are no qualified U.S. workers available for the job and that hiring a foreign worker will not negatively impact the U.S. labor market. Once the labor certification is approved, the employer can file an immigrant petition on behalf of the worker.

Similar to the other employment-based categories, the EB-3 category is subject to annual numerical limits, which can lead to backlogs in certain cases, especially for nationals of countries with high demand for green cards (China and India).

4. EB-4 Special Immigrants

The EB-4 (Employment-Based Fourth Preference) category encompasses “Special Immigrants.” Special Immigrants are individuals who are eligible for permanent residency (green card) in the United States based on specific special circumstances or types of employment. This category is diverse and includes a variety of individuals who don’t fit into the other employment-based categories.

The EB-4 category includes several subcategories for different types of Special Immigrants:

1. Religious Workers: This subcategory is for religious workers who have been members of a religious denomination that has a bona fide nonprofit religious organization in the U.S. for at least two years. Religious workers can include ministers, religious instructors, and other religious professionals.
2. Certain Employees or Former Employees of the U.S. Government Abroad: This subcategory is for individuals who have been employed by the U.S. government abroad or by certain international organizations. It includes U.S. embassy or consulate employees, translators, and others who have worked on behalf of the U.S. government.
3. Certain Former Employees of the Panama Canal Zone or Canal Company: This subcategory is for individuals who worked for the Panama Canal Company or Canal Zone government as U.S. citizens or residents on specified dates.
4. Certain Retired International Organization Employees: This subcategory is for individuals who have worked for international organizations designated by the President of the United States and are retiring to the U.S.
5. Certain Religious Workers: This subcategory is for certain religious workers, including ministers and non-ministers in religious vocations or occupations, who have been continuously employed for at least two years before applying.
6. Certain Broadcasters: This subcategory is for international broadcasters who have worked for a qualifying international broadcasting entity.
7. Iraqi and Afghan Translators/Interpreters: This subcategory is for individuals who have worked as translators or interpreters for the U.S. military in Iraq or Afghanistan.
8. Iraqi and Afghan Nationals Employed by the U.S. Government: This subcategory is for Iraqi and Afghan nationals who have worked for or on behalf of the U.S. government in Iraq or Afghanistan.
9. Certain Physicians: This subcategory is for foreign medical graduates who have completed medical training in the U.S. and are willing to work in areas with a shortage of medical professionals.
10. Certain Armed Forces Members: This subcategory is for certain members of the U.S. Armed Forces and their family members.
11. Other Special Immigrant Categories: This catch-all subcategory includes individuals who fit into specific special immigrant categories, including certain retired NATO-6 civilians, employees of U.S. government contractors, and more.

5. EB-5 Immigrant Investors

The EB-5 (Employment-Based Fifth Preference) category is a unique classification within the U.S. immigration system that allows foreign investors and their immediate family members to obtain permanent residency (green cards) in the United States by making qualifying investments in U.S. commercial enterprises. This program is designed to stimulate the U.S. economy through job creation and capital investment.

To qualify for the EB-5 Immigrant Investor Program, individuals must generally meet the following criteria:

• Investment Amount: The investor must invest a certain minimum amount of capital in a new commercial enterprise. The minimum investment amount depends on whether the investment is made in a Targeted Employment Area (TEA), which is an area with high unemployment, or a non-TEA.
• Job Creation: The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the investor’s admission to the U.S. as a conditional permanent resident.
• At-Risk Investment: The investor’s capital must be at risk for the purpose of generating a return on the capital placed at risk.
• New Commercial Enterprise: The investment must be made in a new commercial enterprise, which can include the creation of a new business or the substantial reorganization or expansion of an existing business.
• Engagement in Business: The investor must be engaged in the day-to-day management or policy formation of the business.
• Source of Funds: The investor must demonstrate that the capital invested comes from lawful sources. This requires providing documentation to trace the funds back to their origin.

If the investor’s application is approved, they initially receive a conditional green card, which is valid for two years. During the 90-day period immediately before the two-year anniversary of receiving conditional residency, the investor must file a petition to remove the conditions on their green card. This petition requires demonstrating that the investment was sustained and that the required job creation has occurred.

The EB-5 program is subject to an annual quota, and the demand for EB-5 visas can sometimes lead to waiting lists for certain countries (China and India). It’s also worth noting that the EB-5 program has undergone changes and updates over the years, and program requirements can vary.

How to apply for a green card through employment?

Applying for a green card through employment in the United States involves a multi-step process that requires careful preparation and adherence to the specific requirements of the chosen employment-based category. The following is a general overview of the steps involved:

Step 1. Determine Eligibility: Determine which employment-based green card category you qualify for based on your qualifications, skills, and the specific criteria of each category (EB-1, EB-2, EB-3, etc.).

Step 2. Labor Certification (if required): For most employment-based categories, except some applicants such as EB-1 or EB-2 NIW, your U.S. employer must obtain a labor certification from the U.S. Department of Labor (DOL). The labor certification process involves demonstrating that there are no qualified U.S. workers available for the job and that hiring a foreign worker will not adversely affect the U.S. job market. In some cases, you may be eligible for a National Interest Waiver to bypass this step.

Step 3. Employer Sponsorship: Your U.S. employer (or in some cases, you as a self-petitioner) files an immigrant petition on your behalf with the U.S. Citizenship and Immigration Services (USCIS). This petition establishes your eligibility for a green card in your chosen employment-based category. Each category has its own specific form (e.g., Form I-140 for most categories).

Step 4. Priority Date and Visa Bulletin: Once your petition is approved, the USCIS will assign you a “priority date.” Your priority date is crucial, as it determines when you can proceed to the next steps based on visa availability. You’ll need to monitor the Visa Bulletin published by the U.S. Department of State to see when your priority date becomes current.

Step 5. Adjustment of Status or Consular Processing: If your priority date is current and an immigrant visa number is available, you can either apply for Adjustment of Status (Form I-485) if you are already in the U.S., or you can undergo Consular Processing if you are outside the U.S. Adjustment of Status is the process of applying for your green card while you are in the U.S., while Consular Processing involves applying for an immigrant visa at a U.S. consulate abroad.

Step 6. Biometrics and Interview: If you are applying for Adjustment of Status, you will likely need to attend a biometrics appointment to provide fingerprints, photographs, and a signature. Additionally, you may need to attend an interview as part of the green card application process.

Step 7. Conditional Green Card (applies to EB-5 Investor Visa only): you will receive a conditional green card initially. 

Step 8. Removal of Conditions (applies to EB-5 Investor Visa only): you’ll need to apply to remove the conditions within the specified time frame (usually 90 days before the card expires). This process involves demonstrating that you have fulfilled the investment or job creation requirements, depending on the category.

Step 9. Receive Permanent Green Card: Once your application is approved and all conditions are met (if applicable), you will receive a permanent green card, granting you lawful permanent residency in the U.S.

How much does it cost to obtain a green card through employment?

The cost of obtaining a green card through employment in the United States can vary significantly depending on several factors, including the specific employment-based category you’re applying under, whether you’re applying for Adjustment of Status or Consular Processing, whether you have dependents (spouse and unmarried children under 21) accompanying you, and any additional fees associated with medical exams, translations, and legal representation. Here is a general breakdown of some of the costs involved:

• Employment-Based Petition Filing Fee: This fee is associated with filing the immigrant petition (e.g., Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). Form I-140 fee is $700.
• Premium Processing: some employment-based petitions are eligible for premium processing that expedites the review of Form I-140 down to 15 days. The optional premium processing fee is $2,500.
• Adjustment of Status or Consular Processing Fee: If you’re applying for Adjustment of Status (Form I-485) within the U.S., the fee is $1,225 (for applicants age 14-78). If you’re undergoing Consular Processing, you’ll pay the fee of $325 for the DS-260 application (used for immigrant visa processing).
• Biometrics Fee: If you’re applying for Adjustment of Status, a biometrics fee of $85 is typically required to cover the cost of the fingerprinting process.
• Medical Examination: A medical examination conducted by a designated civil surgeon is required for many green card applicants. The cost of this exam can vary anywhere from $200 to $600 per applicant.
• Translation and Documentation Costs: If any of your documents are not in English, you need to get them translated, which can incur additional costs.
• Attorney Fees: Many applicants choose to work with immigration attorneys or consultants to navigate the complex process. Attorney fees can vary widely depending on the services provided and the attorney’s experience.

How long does it take to obtain a green card through employment?

The processing time to obtain a green card through employment in the United States can vary widely depending on several factors, including the specific employment-based category you’re applying under, the country of your nationality, the USCIS processing times, and any potential backlogs in visa availability. Here’s a general overview of the factors that can influence the processing time:

• Priority Date: The “priority date” is the date on which your employer filed the immigrant petition Form I-140 on your behalf. The availability of green cards is determined by the priority dates, and applicants must wait until their priority date becomes “current” according to the Visa Bulletin published by the U.S. Department of State.
• Visa Availability: The Visa Bulletin determines the availability of immigrant visa numbers for each category and country. If your priority date is before the “current” date listed in the Visa Bulletin for your category and country, a visa number is available for you to proceed with the next steps.
• Employment-Based Category: Different employment-based categories have different processing times. Generally, EB-1 and EB-2 categories tend to have shorter processing times compared to EB-3 and EB-5 due to the higher level of priority.
• Country of Chargeability: Some countries have higher demand for green cards than the available quota allows. As a result, applicants from countries like India and China may face longer waiting times due to visa availability limits.
• Consular Processing vs. Adjustment of Status: The processing time can vary depending on whether you’re applying for Adjustment of Status (within the U.S.) or undergoing Consular Processing (outside the U.S.).
• USCIS Processing Times: USCIS processing times for various forms and applications can vary. Delays can occur due to high volumes of applications, staffing levels, changes in policies, and other factors. Some employment-based petitions are eligible for premium processing which expedites the review of a petition to 15 calendar days.
• RFEs and Additional Documentation: If the USCIS requests additional documentation or issues a Request for Evidence (RFE), it can extend the overall processing time as you gather and submit the required information.
• Administrative Processing: In Consular Processing cases, applicants might undergo additional administrative processing, which can add to the processing time.
• Backlogs and Wait Times: In some cases, particularly in categories with high demand or country-specific limits, there can be significant backlogs, resulting in longer waiting times for visa availability.

Employment-based green card checklist of documents

The specific documents required for an employment-based green card application can vary depending on the employment category, the applicant’s situation, and the specific requirements of the U.S. Citizenship and Immigration Services (USCIS). However, here’s a general checklist of documents that are often required or recommended for employment-based green card applications:

• Immigrant Petition (Form I-140) Documentation:
  • Completed Form I-140, filed by your employer or self-petitioner.
  • Copy of your job offer letter or employment contract.
  • Evidence of your qualifications, achievements, and work experience.
  • Labor certification (if applicable).
  • National Interest Waiver request (if applicable).
  • Supporting documentation based on the specific category you’re applying under (e.g., letters of recommendation, publications, awards).
• Adjustment of Status (Form I-485) or Consular Processing Documentation:
  • Completed Form I-485 (if applying for Adjustment of Status) or DS-260 (if undergoing Consular Processing).
  • Copy of your approved Form I-140.
  • Passport-style photographs.
  • Birth certificate (translated if not in English).
  • Marriage certificate (if applicable, translated if not in English).
  • Divorce or death certificates (if applicable).
  • Affidavit of Support (Form I-864) for some applicants.
  • Evidence of financial support, such as tax returns, pay stubs, and employment verification (for some applicants).
  • Copies of police clearance certificates (if required).
  • Copies of military records (if applicable).
  • Form I-693, Report of Medical Examination and Vaccination Record (for Adjustment of Status applicants).
  • Copies of visa documentation (if applicable).
  • Application fees or fee waivers (if applicable).
• Additional Documents for Specific Categories:
  • If applying under the EB-5 Immigrant Investor Program, documentation related to your investment, job creation, and source of funds.
  • If applying under the EB-2 National Interest Waiver, evidence of how your work benefits the U.S. national interest.
  • If applying under the EB-3 category, evidence of your qualifications, job experience, and labor certification.
• Translations and Certified Copies:
  • Translations of any documents not in English.
  • Certified copies of original documents, if required.
• Evidence of Legal Status (if applicable):
  • Copies of previous visa approvals, I-94 records, and other evidence of legal status in the U.S., if applicable.
• Employment Authorization and Advance Parole (if applicable):
  • Copies of Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Travel Document), if you’re applying for these along with your green card application.

Remember that USCIS requirements can change, and the documents needed may vary based on your individual circumstances and the category you’re applying under.

Can I self-petition an employment-based green card?

Yes, in certain employment-based green card categories, you can self-petition, which means you can file the immigrant petition (usually Form I-140) on your own behalf without the need for a U.S. employer to sponsor you. This allows individuals with exceptional abilities or certain qualifications to apply for a green card based on their own merits and achievements.

Here are two common categories in which you can self-petition:

• EB-1A Extraordinary Ability: This category is for individuals with extraordinary abilities in their respective fields, such as science, arts, education, business, or athletics. You can self-petition under this category if you can demonstrate sustained national or international acclaim and recognition in your field. This category is designed for those who have risen to the top of their profession and do not require a specific job offer.
• EB-2 National Interest Waiver (NIW): Under the EB-2 category, you can apply for a National Interest Waiver (NIW) if you can demonstrate that your work is of substantial benefit to the United States and that it’s in the national interest to waive the requirement for a job offer and labor certification. This allows you to self-petition and forgo the need for a U.S. employer to sponsor you.

Both of these categories are advantageous because they don’t require a labor certification, and they provide more flexibility and autonomy for individuals seeking permanent residency based on their skills and qualifications.

Can family members of employment-based applicants obtain green cards?

Yes, family members of employment-based green card applicants can also obtain green cards through a process known as “derivative status.” When an individual is approved for an employment-based green card, their immediate family members may be eligible to apply for green cards as well. Immediate family members include the spouse and unmarried children under the age of 21.

Here’s how derivative status works for family members of employment-based applicants:

1. Spouse:
   • The spouse of the employment-based green card applicant is eligible for derivative status.
   • The spouse’s green card application is typically filed concurrently with the primary applicant’s application.
   • The spouse’s green card is usually approved around the same time as the primary applicant’s green card.
2. Children:
   • Unmarried children under the age of 21 of the employment-based green card applicant are also eligible for derivative status.
   • Similar to the spouse, children’s green card applications are typically filed concurrently with the primary applicant’s application.
   • Children’s green cards are usually approved around the same time as the primary applicant’s green card.
3. Aging Out:
   • It’s important to be aware of the “aging out” issue, especially for children who are close to turning 21. If a child turns 21 before their green card application is processed, they might lose eligibility for derivative status and might need to pursue other immigration options.
4. Separate Applications:
   • Family members applying for derivative green cards must submit their own sets of application forms, supporting documents, and fees.
   • They will need to undergo background checks, medical examinations, and other processes similar to the primary applicant.

Related Links:

PERM Process (Labor Certification)

Form I-140, Immigrant Petition for Alien Workers

EB-1 Visa for Extraordinary Individuals

EB-2 Visa, How to Apply

EB-3 Visa, How to Apply

EB-5 Immigrant Investor Visa – How to Apply