By Elissa (Ying)Lu
A temporary worker holding a work visa can seek to live permanently in the United States through an immigrant visa. The United States has the highest number of immigrants compared to the rest of the world. As per the U.S. Bureau of Labor Statistics, the share of the U.S. civilian labor force that is foreign born accounts for 17 percent.
One of the several ways a foreign national can immigrate to the United States is through an employment-based immigrant visa. The employment-based immigrant visa is based on a permanent employment opportunity in the United States. To be eligible to permanently immigrate to the United States through the employment visa or if an employer wants to sponsor someone for permanent residency through the employment visa, there are several steps in this process. This multi-step process is outlined in detail below.
The USCIS makes available approximately 140,000 employment-based immigration visas every year, also known as EB visas, to applicants who qualify under the U.S. immigration law provisions. An employer may sponsor a foreign national or a person with a temporary work visa for permanent employment by completing several steps that will ultimately lead to permanent residency or a Green Card.
A U.S. employer may sponsor individuals with a work visa like H-1B or L1 visa to permanent residency if the applicant qualifies with the right combination of education, work experience and skills and fulfils other eligibility requirements. This gives employers the advantage of securing more long-term employment over temporary visa options like H-1B which need to be renewed from time to time.
Employment based categories are divided into five categories. These five categories are: EB-1, EB-2, EB-3, EB-4 and EB-5. Each category has its own sub-groups respectively.
Employment First Preference (E1 or EB-1): Priority Worker and Persons of Extraordinary Ability
This immigration category is designated for the following sub-groups:
In all of the above sub-groups, if the conditions laid out by the USCIS are met, no labor certification is required.
Employment Second Preference (E2 or EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
The EB-2 category includes the following sub-groups:
The first two sub-groups outlined above need an approved PERM labor certification from the Department of Labor (“DOL”), These two sub-groups are dependent on a valid permanent job offer from a U.S. employer. Following an approved PERM certification, the U.S. employer must file for the Form I-140 on behalf of the applicant.
The PERM requirement can be waived for the National Interest Waiver petition. Therefore, applicants can directly file the I-140 petition.
Employment Third Preference (E3 or EB-3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
This category is quite broad and includes individuals with a varying level of education, skills and competencies which are less advanced than those set forth in EB-1 and EB-2. A U.S. employer must agree to sponsor the petition. The petitions must also go through the same steps as second preference, that is, the PERM Labor Certification needs to be approved by the DOL after which the prospective U.S. employer may file the Form I-140 petition.
This category has the following sub-groups:
Employment Fourth Preference (E4 or EB-4): Certain Special Immigrants
The Special immigrants who will qualify under this category include, among others, religious workers, special immigrant juveniles, certain retired officers or employees of international organizations, etc.
Employment Fifth Preference (E5 or EB-5): Immigrant Investors
The EB-5 category of employment-based green card is a unique one because this visa grants foreign investors the opportunity to become a permanent resident through a substantial capital investment in a new commercial enterprise in the United States which provides for the creation of 10 full-time jobs for qualified U.S. workers. EB-5 investors shall self-petition for an immigrant visa on the Form I-526.
Overview of The Employment-Based Green Card Process
The application process may be different for each of the categories of employment-based visas.
EB-1 Application Process
One of the main benefits of applying Green Cards under the EB-1 category is that this category does not require a PERM Labor Certification. The applicant is able to directly file an immigration petition on the Form I-140. The date of filing the Form I-140 petition becomes the applicant’s priority date. For EB-1A and EB-1B categories, when combining the use of premium processing, the applicants will receive a decision in 15 calendar days from USCIS.
The priority date that appears on the I-140 receipt notice ensures a place for the applicant in the waiting list for an immigration visa. The applicant can submit the I-485 application or the DS-260 application only when their priority date becomes current.
If the priority date becomes current, one who is already in the U.S. can apply for adjustment of status by filing the form I-485 with the USCIS. And if the prospective worker is in their home country, they may apply for an immigrant visa at the U.S. Embassy or Consulate in their home country and go through an interview by completing several steps. Both are ways to secure a Green Card, although in the latter scenario, the foreign worker will become a permanent resident only when they enter the U.S. with their immigrant visa.
For applicants already in the U.S. and whose priority dates are current, they can choose to concurrently file their I-485 application along with the I-140 petition; However, for applicants who are outside of the U.S., even if their priority dates are current at the time of I-140 submission, they have to wait until the I-140 petition is approved before they can start the consular processing.
EB-2 and EB-3 Application Process
There are three essential steps in the employment-based green card process for the categories of EB-2 and EB-3.
Once employers determine if the temporary work visa holder or foreign national is eligible to progress from a work visa to permanent residency, employers for EB-2 and EB-3 categories require to complete a labor certification request with the Department of Labor’s (DOL) Employment and Training Administration department. This is not required for EB-2 applicant applying for a National Interest Waiver.
The Labor certification process, also known as PERM, is carried out exclusively by the employer. The first step in this process is for the employer to submit a Prevailing Wage Determination (PWD) with the DOL’s online FLAG system. The PWD gives the prevailing wage rate for the area of employment of the position for which the employer is hiring a permanent foreign worker.
The employer must then carry out a recruitment process to demonstrate that there are no other qualified US workers available for the PERM position.
Since the PWD expires within a year or less from the date it is issued, it is imperative that the employer complete the recruitment process and file the PERM within that period.
The employer then files the PERM labor certification online using the ETA Form 9089 DOL. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date for adjudicating the Green Card application later on.
The DOL usually takes several months to adjudicate the labor certification application.
If the Labor certification application is certified by the Department of Labor, the next step is for the employer to submit the certified PERM with a Form I-140, Immigrant Petition for Alien Worker, to the appropriate USCIS service center. This must be done within 180 days of the PERM certification approval, otherwise the PERM expires.
As per current case processing times, the USCIS is taking anywhere between 3.5 to 14 months to adjudicate an I-140 petition. There is, however, an option to expedite a Form I-140 petition by filing a Premium Processing Application with the USCIS.
This process is the same as the process under the EB-1 category.
EB-4 Application Process
The petitions submitted under the EB-4 category must be filed on the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
The requirements for filing under this category also varies for the different categories eligible for EB4 visa. For example, even though PERM is not required for religious workers category, the applicant must show evidence of the religious organization and that the organization is a non-profit.
When the priority date for the EB4 application becomes current in the visa bulletin, the applicant can move to the next step, by filing the I-485 application or going through the consular processing.
EB-5 Application Process
An investor who wishes to immigrate to the U.S. through the EB5 route has to go through several steps, once the investor finalizes on the investment.
An investor must file Form I-526 with the USCIS if the investor has invested or is in the process of investing the required investment amount in a new commercial enterprise. This petition must prove that they meet the EB-5 requirements.
If the application is approved, the investor needs to either file DS-260 if the investor is abroad or file Form I-485 with USCIS to adjust status. Once USCIS approves the I-485 application, it will grant conditional permanent residence to the EB-5 investor and al derivative family members for two years.
The final step is to file for the removal of conditions by filing Form I-829 with the USCIS 90 days prior to the second anniversary of the date the conditional residency was granted. On approval, the USCIS removes all conditions and the EB-5 investor receives Green Card valid for 10 years which is renewable as expiry approaches.
The employment-based immigration process can be an arduous route, considering the number of steps involved in each stage. Going from one step to another properly can be overwhelming for most people. If you are well-positioned to advance a temporary worker to permanent resident, it would be beneficial for you to get the help of immigration expert.
Law Office of Lu & Associates’ team of immigration experts can help you in the long and winding road to obtain an employment-based Green Card. With the help and guidance of our team, you can be rest assured that your petitions keep moving smoothly. Our reputation and history of successful immigration cases speak for themselves. We can help you too so don’t hesitate to contact us today.