Employment-Based Green Cards
We are frequently asked about the process and requirements for obtaining employment-based permanent resident status in the U.S. (also known as employment-based green cards or employment-based immigrant visas). Here is some general information about obtaining employment-based green cards that we hope you'll find helpful. For a consultation with an immigration lawyer regarding employment-based green cards, please contact us. Edgecomb Law LLC has a nationwide immigration practice, which means that the firm works with immigration clients in the Boston area as well as throughout the United States and abroad.
If you are an entrepreneur or otherwise involved with a small business or startup, you might also want to check out our page on Immigration for Entrepreneurs.
Green Card Priority Dates and Visa Numbers
An important consideration to keep in mind when applying for permanent resident status is that the number of green cards that are available each year is set by federal law. There are several different categories of employment-based green cards, and the number of visas available each year for each category of employment-based green card is limited strictly by law. Additionally, there are limits placed on the number of visas from each category that can be issued to candidates from a particular country each year.
For some types of immigrant visas, there is more demand for the visa in a given year than there is a supply of visas. When this happens, a waiting list forms for individuals from a particular country who wish to obtain a visa through that particular category. Visas are distributed to individuals in the waiting list according to the petitioner's priority date - which is the earlier of the date that (1) the petitioner or her employer filed Form I-140 Petition for Alien Worker with USCIS or (2) the petitioner's employer filed a petition for PERM labor certification with the US Department of Labor (if a labor certification is necessary based on the requirements of the category of green card for which she is applying). It is important to be aware that some categories of green cards are more likely to have visas available for petitioners than others -- especially petitioners from certain countries -- and that the level of visa availability can have a significant impact on the time it takes the petitioner to obtain a green card.
PERM Labor Certification
Another very important issue to keep in mind is the matter of whether a particular category of green card includes a requirement that the candidate's employer obtain a PERM labor certification from the Department of Labor prior to filing an immigration petition. This is a costly and time-consuming process that entails proving that there are no qualified US workers who could be hired for the position for which the candidate is being sponsored. The labor certification process can take several years.
Because some categories immigrant visas do not include a labor certification requirement, it is generally faster, more convenient and less expensive to apply for those types of green cards. However, the bar for obtaining green cards with no labor certification requirement is generally higher than for green cards with a labor certification requirement. As discussed below, compliance with PERM requirements are mandatory for second and third preference green card petitioners. But first preference, fourth preference and fifth preference green card petitioners need not satisfy the labor certification requirements. For second preference national interest candidates, the labor certification requirement is waived.
Green Card Categories
Employment-based green cards are divided into five categories, some of which contain additional subcategories. The first category, known as "First Preference" or "EB-1" green cards, are available to "priority workers," specifically: (1) aliens of extraordinary ability; (2) outstanding researchers or professors; or (3) company managers or executive transferees to the US. The second category, known as "Second Preference" or "EB-2" green cards, are available to foreign professionals who hold an advanced degree or its equivalent. The third category, known as "Third Preference" or "EB-3" green cards, may be obtained by foreign professionals who hold a bachelor's degree, along with certain other types of skilled or unskilled workers. The fourth category, known as "Fourth Preference" or "EB-4" green cards, are available for designated categories of "special workers" as specified by federal immigration law. The fifth category, known as "Fifth Preference" or "EB-5" green cards are available to individuals who have invested or are in the process of investing substantial sums of money in the US and hiring US workers. Each category will be explained in more detail below.
EB-1 First Preference Green Cards for Priority Workers
One of the benefits of applying for an EB-1 green card is that visa numbers for this category are almost always available immediately once a petition has been approved. Accordingly, applying through the EB-1 program is generally one of the fastest ways of obtaining permanent resident status. An additional benefit to applying for an EB-1 green card is that no PERM labor certification is required for EB-1 petitioners.
EB-1A First Preference Green Cards for Aliens of Extraordinary Ability
Individuals who apply for EB-1A green cards as aliens of extraordinary ability may self-petition and are not required to have a job offer, employer sponsor or PERM labor certification before applying. However, the bar for obtaining a green card in this category is very high, and candidates must must establish that their work is in the national interest of the US and that they plan to continue their work in the US if granted an immigrant visa. There is no minimum level of work experience required for this category of green card, but EB-1A candidate must must prove their extraordinary ability through evidence that they have obtained or achieved at least three of the following: (1) prizes or awards of national or international significance; (2) membership in an organization that requires outstanding achievement for membership; (3) published work discussing the candidates work in detail (beyond mere citation to the candidate's work); (4) having judged the work of others in the same or a related field in which candidate works; (5) evidence of unique scientific, artistic, scholarly or athletic contributions - usually demonstrated through publications; (6) authorship of scholarly articles in major journals or media; (7) display of the candidate's work at significant exhibitions; (8) performance of a significant role in organizations with a distinguished reputation; (9) having earned a higher salary than is usual in the candidate's field; (10) commercial success in the performance arts as shown by sales or box office receipts; or (11) other comparable evidence if the preceding categories do not apply to candidate's field.
EB-1B First Preference Green Cards for Outstanding Researchers or Professors
Unlike aliens of extraordinary ability, individuals who seek permanent resident status as EB-1B outstanding researchers or professors must establish that they have a permanent job offer in the US and employer sponsorship is required for this category of visa; self-petitioning is not allowed. However, the bar for establishing outstanding accomplishments is lower, and there is no PERM labor certification prerequisite for petitioning for an EB-1B. Also, the "permanent job offer" requirement is satisfied so long as the candidate's employment is not limited in time by a contract for a fixed period of time (e.g., 3 years). In addition to a job offer, an EB-1B candidate must establish that she is internationally recognized in a particular academic field and that she has at least three years of experience teaching or conducting research in that particular field (including time spent teaching or conducting research while working towards an advanced degree). The candidate's job offer must be for a tenured or tenure-track teaching or research position at a university, or a comparable research position at a university or private organization with at least three employees and documented academic accomplishments. To demonstrate the requisite accomplishments for obtaining an EB-1B green card, an individual must show that she has obtained or achieved at least two of the following: (1) prizes or awards of national or international significance; (2) membership in an organization that requires outstanding achievement for membership; (3) published work discussing the candidate's work in detail (beyond mere citation to the candidate's work); (4) having judged the work of others in the same or a related field in which candidate works; (5) evidence of unique scientific or scholarly athletic contributions; or (6) evidence of authorship of scholarly books or articles in international journals.
EB-1C First Preference Green Cards for Managers or Executive Transferees
EB-1C green cards are available to company managers and executives who work for multinational firms that conduct business in both the US and a foreign country in the regular, systematic and continuous provision of goods or services. The sponsoring entities inside and outside the US must be related as either parent/subsidiary companies, branches or affiliates. These requirements are often easy to satisfy for large and well-known firms, but small or new companies must provide extensive documentation to meet the standards required for EB-1C sponsorship. Self-petitioning under this category is not permitted; employer sponsorship is required. However, there is no PERM labor certification required. To qualify for an EB-1C green card, the candidate must have worked for the sponsoring company in managerial or executive capacity (1) outside the US for at least one year in the three years prior to the filing of the I-140 Petition for Alien Worker; or (2) if the candidate is in the US on a nonimmigrant visa working for the sponsoring company, she must have worked for a foreign office or branch of the sponsoring company for at least one of the three years prior to entering the US as a nonimmigrant. To be considered a manager or executive for EB-1C purposes, the candidate must (1) manage the company or a department, component or function of the firm; (2) supervises and controls the work of other managerial employees or manages an essential function within the company; (3) has authority to make personnel decisions such as hiring or firing employees; and (4) receives only general supervision from other firm managers or directors. The standard for determining eligibility for an EB-1C green card is very similar to the standard for qualifying for an L-1A nonimmigrant visa for intracompany transferees, and it is generally observed that holders of L-1A visas are best equipped to seek adjustment of status to an EB-1C green card.
EB-2 Second Preference Green Card for Foreign Professionals with an Advanced Degree or its Equivalent
Generally speaking, to qualify for an EB-2 green card for foreign professionals with an advanced degree, a candidate must hold an advanced degree (Masters level or higher) or a bachelor's degree plus five years of relevant experience. The job for which the candidate is applying must require the advanced degree or equivalent experience, and employer sponsorship is generally required to petition for an EB-2 visa. A candidate may also qualify for an EB-2 visa by establishing exceptional ability, which requires the candidate to demonstrate at least three of the following: (1) a professional license to practice in the candidate's field; (2) letters documenting at least ten years' full-time experience practicing in the candidate's field; (3) a degree, certificate or award from a university or other institution reflecting outstanding ability; (4) evidence of a salary demonstrating exceptional ability; (5) membership in a professional association; (6) recognition of the candidate's ability by the candidate's peers, a government entity, professional or business organization; or (7) other comparable evidence of ability. Unless the candidate qualifies for a National Interest Waiver (discussed below), employer sponsorship is required and compliance with PERM labor certification requirements is mandatory.
EB-2 National Interest Waiver (NIW) Petitions
EB-2 green card applicants may be exempt from the PERM labor certification requirement if they can demonstrate that it is in the interest of the US that the labor certification be waived. To qualify for a NIW, a candidate must (1) hold an advanced degree or show exceptional ability in the sciences, arts or business; (2) be employed or seeking employment in an area of substantial intrinsic interest to the US; (3) demonstrate that the proposed benefit to be provided to the US would be national in scope; and (4) establish that it would be contrary to the national interest to deprive the prospective employer of the candidate's services by making available to US workers the position sought by the candidate. For purposes of obtaining a NIW, relevant benefits to the US can include economic benefits, health care benefits, environmental benefits, benefits to a US government agency, benefits to training programs for US students or workers, housing benefits for underserved populations, benefits to working conditions for US workers. NIW candidates for EB-2 green cards are permitted to self-petition and do not require employer sponsorship for their visa petitions, but employers are permitted to petition for a NIW on a candidate's behalf.
EB-3 Third Preference Green Card for Professionals and Other Workers
EB-3 green cards are available to certain types of professionals and other workers, including skilled and unskilled workers. PERM labor certifications are required for all EB-3 candidates, as are full-time job offers. To qualify for an EB-3 green card under the professional category, the candidate must hold a bachelor's degree or foreign equivalent, and must demonstrate that a bachelor’s degree is a requirement for the job being offered to the candidate. To qualify as a skilled worker, a candidate must be able to show that she has at least two years of relevant job experience or training. To qualify as an unskilled worker, a candidate must demonstrate that she is capable of performing unskilled labor requiring less than two years of training or experience. The subject job offer in the EB-3 unskilled labor category cannot be of a temporary or seasonal nature.
EB-4 Fourth Preference Green Card for Special Categories of Immigrants
Fourth preference green cards are available to qualifying individuals who fit into the following categories: (1) religious workers; (2) broadcasters; (3) Iraqi and Afghan translators; (4) Iraqis who have assisted the United States; (5) international organization employees; (6) physicians; (7) armed forces members; (8) Panama Canal Zone employees; (9) retied NATO-6 employees; and (10) spouses and children of deceased NATO-6 employees. There is no labor certification requirement for fourth preference green card candidates. EB-4 candidates are permitted to self-sponsor and are not required to obtain a PERM labor certification.
EB-5 Fifth Preference Green Card for Immigrant Investors
EB-5 visas are available to qualifying individuals who have invested or are in the process of investing in new commercial enterprises in the US that will create at least ten full-time jobs for qualifying US workers within a two year period. To qualify for an EB-5 immigrant investor green card, the candidate must invest at least $1 million, or $500,000 if the investment is being made in a high unemployment or rural area as designated by federal law. Self-sponsorship is permitted for EB-5 green card candidates, and no PERM labor certification is required.
EB-6 Proposed Sixth Preference Green Card for Principals of Startups
PROPOSED LEGISLATION ONLY
The EB-6 green card for startups was proposed in 2011 by Senator John Kerry [D-MA] and a handful of cosponsors. So far, the startup visa bill has languished in committee. If approved, the startup visa would require one of the following: (1) for entrepreneurs living outside the US - a minimum investment of $100,000 plus creation of five US jobs and $500,000 in revenue or financing within the first two years; (2) for H-1B workers or science, technology, engineering or math graduates only - an annual income of at least $30,000 or assets of at least $60,000 and commitment by US investors of at least $20,000 in the venture; plus the venture must have created at least three US jobs and generate at least $100,000 in revenue or financing in the first two years; or (3) for foreign entrepreneurs whose business has generated at least $100,000 in US sales - the business must must have created at least three US jobs and generate at least $100,000 in revenue or financing in the first two years. Please note that at this point in time, the EB-6 startup visa is still only a proposal.
To speak to an immigration lawyer about obtaining an employment-based green card, please feel free contact us.