Employment-Based Immigrant Procedures

The employment-based (EB) preference system contains five (5) preferences

• The first employment-based preference (EB-1) is available to persons of “extraordinary ability,” “outstanding professors and researchers,” and certain “executives” and “managers” of multinational organizations
• The second preference (EB-2) is for people in the “national interest” and those sponsored for a labor certification, and have a master’s degree or bachelor’s degree plus 5 years of work experience (or greater)
• The third preference (EB-3) is for all other workers who usually must be sponsored for a labor certification issued by the Department of Labor to prove worker shortage
• The fourth preference (EB-4) is principally for religious workers
• The fifth preference (EB-5) is for investors

This site discusses the criteria for these visa categories except religious workers.

For information about employment bisa backlogs, click here.

Labor Certification and/or Petition

The employment based green card process is started by filing either a labor certification with the Department of Labor or a petition with the USCIS. Click here for more detail on the labor certification process.

The Immigrant Visa Petition – USCIS Form I-140

The DOL-approved labor certification is attached to the immigrant visa petition, Form I-140, which is filed with the USCIS service center to classify the foreign national pursuant to the EB-2 or EB-3 preference categories. Supporting documents must accompany the petition to show that the foreign national qualified for the position on the date the labor certification application was filed. This evidence typically includes copies of college degrees and transcripts, and letters verifying the foreign national’s work experience.

The petition must also be supported by the company’s tax returns. A corporation with more than 100 employees may submit a statement of income by a company officer. This is to show that the company can pay the salary listed on the labor certification. If the company is losing money, other criteria may be used including 1) net current assets; and/or 2) the fact that the employee has been paid the wage listed on the labor certification since the time of filing the application.

Filing the Form I-140 petition initiates a case for an EB-1, EB-2 national interest, and Schedule A occupation (nurse or physical therapist). Separate petitions are used for EB-4 religious worker or EB-5 investors.

Adjustment or Immigrant Visa

The next step in the process is to submit an application for “adjustment of status” to lawful permanent resident status. Alternatively, one may apply for an “immigrant visa” at an American consul overseas.

The adjustment of status or immigrant visa process cannot begin until the filing date of the petition becomes current on the State Department’s Visa Bulletin at which time a visa number becomes available.

Adjustment applications can only be filed if one is lawfully admitted to the U.S., and certain other criteria are established.

This part of the process involves proving that the foreign national is “admissible” to the U.S. and has adequate support, is not a criminal, has not committed immigration fraud, has no contagious diseases, and so forth. Employment based adjustment immigrants are permitted up to six months of unauthorized employment.

When granted adjustment or an immigrant visa is issued and the person arrives in the U.S., permanent residence status is granted and a green card is issued.