Employment based immigration is one of just a few paths toward becoming a US permanent resident. If you do not have family members who are already residents or citizens of the US, are not eligible through political asylum or refugee routes, and don’t want to rely on a green card lottery, an employment based green card may be your best bet.
There are several types of employment based immigration visas with a variety of eligibility criteria. In the majority of cases, an offer of permanent employment is required, as well as labor certification in some instances. There are, however, provisions for waivers available to certain professionals. In many cases, applicants start out on a temporary work visa such as the H1B or L1 visa and transition into an employment based green card at a later date.
The process of employment based immigration often begins with obtaining an employment offer in the US. Outside of certain specialty categories and occupations, certain individuals with extraordinary ability, or for the EB5 program where the requirement is an investment that creates jobs rather than personal employment, the petition must be filed by the sponsoring employer.
For some visa categories, the employer must obtain an approved labor certification from the US Department of Labor (through PERM) before proceeding with the petition to show that US workers are either unwilling or unqualified to fill the position at the prevailing wage, and that hiring a foreign worker will not negatively affect wages or working conditions for US workers. This process may take several months up to a year, after which the employer may file the petition. If the employer already has the approval, they have 180 days to file your petition.
Once the petition is approved, a visa may immediately be available, or if the annual quota has been exceeded for the specific category, applicants may need to wait until their priority date becomes current. Once a visa is received, applicants may file the green card application which will lead to an interview.
The total maximum annual quota for employment based immigration visas is 140,000, of which each country is limited to 9,800 (or 7%) regardless of their size or population. Of these, EB1, EB2, and EB3 get 2802 visas per country each, while EB4 and EB5 have quotas of 695 visas per country. Some categories allow for quotas unfilled in other categories to be transferred to their total available visas.
For individuals applying as temporary visa holders within the US, an Adjustment of Status procedure allows them to continue residing in the US while completing their employment based green card process.
Spouses and unmarried children under the age of 21 are eligible to concurrently apply for the green card with the primary applicant. All dependent applications must be filed with required documents and fees, and medical examinations must be conducted.
What are the differences...
EB1 is an employment based, first-preference permanent residence category visa. Subcategories include EB1A, EB1B, and EB1C.
The EB1A is open to those who possess extraordinary ability in the sciences, arts, education, business, or athletics and demonstrated through sustained national or international acclaim. Labor certification or employment offers are not a requirement for this visa.
For outstanding professors or researchers with an offer of employment in the US, the EB1B is available. Applicants of this visa must also demonstrate international recognition of their achievements in their field and have a minimum of 3 years of experience.
Finally, the EB1C may be seen as the permanent visa equivalent of the L1 visa. It allows intra company transferees who are multinational executives or managers to gain lawful permanent residence in the US. Unlike the L1 visa, however, there is no provision for specialized knowledge workers.
EB2 is an employment-based, second preference permanent residence category visa. It is applicable for professionals who hold an advanced degree or equivalent qualifications, or for foreign nationals who exhibit an exceptional ability in the sciences, arts, or business. The EB2 visa requires the applicant to have a sponsoring employer who must obtain labor certification, which can be a lengthy process.
The national interest waiver (NIW) provides a way to bypass this process for qualified individuals who will contribute greatly to the nation’s interests. These applicants may self-petition and file their labor certification directly with USCIS along with Form I-140.
The EB3 is an employment based, third preference visa for skilled, professional, and other workers. Skilled workers must possess a minimum of 2 years of relevant permanent training or work experience and meet all requirements of the US job on offer. Professionals must hold at least a US baccalaureate or foreign equivalent degree and be a member of their profession. Other workers may include those who perform unskilled labor. For all subcategories, labor certification and an offer of a full-time job is required with the exception of some specific professions.
Schedule A for Nurses and Physical Therapists is a key example. Registered nurses and physical therapists have been designated as “shortage occupations” under the Department of Labor’s “Schedule A.” Such designation allows these professionals to bypass the recruitment processes normally required for labor certification. As such, these professionals have an expedited path toward lawful permanent residence.
Religious workers, special immigrant juveniles, broadcasters, G-4 international organization or NATO-6 employees and their family members, international employees of the US government abroad, armed forces members, Panama Canal Zone employees, certain physicians, Afghan and Iraqi translators, and Afghan and Iraqi nationals who have provided faith service in support of US operations may be eligible to apply for an employment based green card through the EB4 fourth preference visa category.
The EB5 program may be seen more as an investor visa than an employment based immigration visa. Rather than personal employment, the EB5 program requires the applicant to make an investment into a US new commercial enterprise that will create at least 10 US jobs. The minimum investment amount is $1.8 million, unless the enterprise is within a targeted employment area, in which case the minimum investment amount drops to $900,000. Investors may choose to be directly involved in the day to day operations of the project or choose to invest through an EB5 regional center.
must-meet preconditions to obtain your work visa
employment based immigration Requirements
A variety of requirements exist for each of the categories of employment based immigration outlined above. Many of these involve professional or other employment-related qualifications, field of work, current state of the applicant’s field of work within the US, and the US need for certain types of employees. For some visas such as EB4, some very specific sets requirements for applicant circumstances must be met, and for EB5, the ability to make a large investment is obviously key.
Some categories and subcategories require permanent job offers in the US along with labor certification, while others do not. There are also special cases where these requirements may be waived.
Documents typically required for an employment based immigrant visa application include a valid passport, the DS-260 Immigrant Visa and Alien Registration application, two passport photos, civil documents such as birth and marriage certificates, and completed medical examination forms. Certain foreign language documents may also require translations, and any copies should be certified.
Each applicant, including dependents of the primary applicant, must undergo a medical examination and receive any required vaccinations prior to the visa interview. An authorized panel physician can determine if any of the standard list of required vaccinations is not appropriate for an individual based on their age and/or medical history and condition. Supplying the examining physician with current vaccination records will help to avoid delays.
Total fees vary for the different work visa categories and are charged for an array of services within the application process. Outside of the various form filing fees, there are also medical examination fees, vaccination costs, as well as other document fees, travel costs for your interview, and any professional consultant fees.
How we can help...
Immigration General Counsel is committed to making your employment based immigrant visa process as painless and easy as possible. Our immigration attorneys ensure that you have all of the information and guidance to choose the visa option that is best suited for you and make sure that our clients take full advantage of any waivers that are available to them. We are also highly experienced in the PERM labor certification process and can guide employers through this if necessary. You can count on our immigration attorneys to stand with you through final resolution of your case.