The Basics of Employment-Based Green Cards

Hundreds of thousands of employment-based green cards are available to prospective foreign employees every year. Though that might seem high, only a limited number are available to persons from each country. This leads to drastically extended wait times, especially for foreign workers from countries like India or China, which have a high volume of applicants.

Facts such as this can make the employment-based green card journey intimidating and overwhelming. Here, we’ll provide an overview of the employment-based green card categories and process, to help you be as informed as possible when pursuing this path to permanent residency.

What Is a Green Card?

“Green card” is the informal term for the immigration document that allows non-United States citizens to live and work in the U.S. as so-called “permanent residents.” It’s literally a green, laminated-paper card showing your picture and other identifying information. It fits in a wallet, and should be carried on one’s person at all times as proof of living in the United States legally.

(Although the law says you should carry your green card, some experts advise carrying only a copy; ICE raids can result in green cards being confiscated, after which they are very difficult to get back.)

U.S. permanent residents receive greater rights than temporary visa holders, although employment-based temporary (nonimmigrant) visas also exist. Most notably, permanent residents may live and work in the U.S. permanently unless they take some action that would make them removable (such as committing certain crimes or abandoning their U.S. residency).

There's also an intermediary status called "conditional residence" that allows someone to carry a green card with a two-year expiration date. These are given solely to new spouses or U.S. citizens or residents (new meaning their marriage was less than two years old at the time of their becoming a resident) or EB-5 investment visa applicants. The immigrant must take steps to make their residence permanent before their card expires. Conditional residence does, however, count toward the years a person must accrue before applying for naturalized U.S. citizenship.

Paths to Employment-Based Green Card Status

An employment-based green card can be obtained through employer sponsorship or, in some categories, through the applicant’s potential to benefit the U.S. professionally.

Employer sponsorship means that the employer files a petition with USCIS to qualify the prospective job for green card sponsorship. Only when that petition is approved may the foreign worker file a green card application based on employment.

Not all U.S. jobs will qualify for green card sponsorship. The law sets out narrow categories, and both the position and the sponsored employee must meet all qualifications for at least one of them.

Categories of Employment-Based Green Cards

There are three main types of employment-based green card available:

• EB-1 (employment-based first preference)
• EB-2 (employment-based second preference), and
• EB-3 (employment-based third preference).

Each also has subcategories, as detailed below.

EB-1 First Preference Category

EB-1, the first preference category, is reserved for prospective employees who can demonstrate either:

• extraordinary ability
• status as an outstanding professor and researcher, or
• status as a multinational executive for manager.

EB-1A: Extraordinary Ability

To qualify under the EB-1A category, the worker must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics. This must be shown through national or international acclaim, based on meeting at least three out of a list of criteria. The criteria include things like winning major awards or being written up in major trade journals or media, authorship of scholarly articles, commercial success in the performing arts, and so on.

It’s a high bar to meet. However, the fact that this category does not require an offer of employment can make it worth vying for, if you’re qualified.

EB-1B: Outstanding Professors and Researchers

To qualify as an EB-1B, the worker must demonstrate international recognition in a particular academic field. That means at least three years of relevant teaching or research experience, as well as meeting two of six criteria, again including things like having received major prizes or awards, made original scientific or scholarly research contributions, authored scholarly books or articles, and so on. This green card category requires an employer sponsor, however.

EB-1C: Multinational Managers or Executives

For EB-1C, often called the category for executive or managerial intracompany transferees category, the main criteria concern the worker’s role in a company or related corporate entity. There must be a bona fide job offer from a U.S. company for a managerial or executive-level job.

The worker will need to have been employed outside the U.S. in a managerial or executive capacity at an entity with a qualifying relationship with the sponsor for at least one out of the three years preceding the application or U.S. employment. The employer must have been legitimately doing business in the U.S. for at least a year.

EB-2 and EB-3 Green Cards

The EB-2 and EB-3 categories require a labor certification from the Department of Labor (“DOL”) (with the exception of the National Interest Waiver EB-2 category, discussed further below). This process, commonly referred to as “PERM,” requires the sponsor-employer to go through a rigorous recruitment effort and get certifications from the DOL for the proposed position.

The PERM process itself can take several months to over a year and involves obtaining a prevailing wage determination from the DOL, advertising the position according to certain standards, and interviewing all qualified applicants. Only after the employer ensures that no U.S. workers are available for the position can the immigrant’s application go forward.

There are three types of EB-2 green cards, including for:

• positions that require an advanced degree
• people with exceptional ability in the sciences, arts, or business, and
• applicants qualifying for a national interest waiver.

EB-2 Advanced Degree Category

To qualify for the advanced degree category, the job must require a degree beyond a U.S. baccalaureate (such as a U.S. Master’s, Ph.D., J.D., or M.D.), or its foreign equivalent. Alternatively, someone with a U.S. baccalaureate plus five years of progressive, post-degree work experience in the specialty can qualify.

EB-2 Exceptional Ability Category

Exceptional ability EB-2 green cards are for people with exceptional ability in the sciences, arts, or business The worker must demonstrate meeting three out of seven criteria, covering things like their academic record, years of full-time experience, relevant license certification recognition or salary, and so on. As with the EB-1A eligibility category, the bar to qualifying is quite high.

EB-2 National Interest Waiver Category

The national interest waiver EB-2 green card does not require labor certification or an employer sponsor. However, the applicant must prove exceptional ability as defined above and that the employment would greatly benefit the nation because: 1) the proposed endeavor has both substantial merit and national importance, 2) the applicant is well-positioned to advance the proposed endeavor, and 3) it would be beneficial to the United States to waive the requirements of a job offer and thus the labor certification.

Because the types of employment that typically qualify for a national interest waiver are not written into U.S. law, USCIS has broad discretion in determining whether this type of green card should be granted. This can make succeeding on one’s application difficult.

EB-3 Green Card Categories

EB-3 or third-preference employment-based green cards are reserved for skilled workers, general professionals, and unskilled workers. A job offer, sponsoring employer, and completion of the labor certification process are required for all three. The employer's petition must prove that the worker has at least two years of job experience, training, or education that matches the requirements indicated on the labor certification.

In the professionals category, the employee must have at least a U.S. baccalaureate degree or foreign equivalent, and the petition must show that such degree is the normal requirement for the job.

The unskilled worker category serves as a catchall for positions that don’t match any other categories. However, the employee must be capable of performing the proposed job, and the position must not be temporary or seasonal.

Because the required qualifications for EB-3 green cards are less than for the EB-1 and EB-2, applicants should expect much greater demand for them, and thus longer wait times.

Process of Getting an Employment-Based Green Card

The basic steps to getting an employment-based green card types are described below. If you are applying for an EB-1A or EB-2 national interest waiver green card, however, you can skip the steps involving an employer sponsor and file the application yourself. (It’s best to get the help of an immigration attorney for this.)

Step One: PERM

Successfully completing the PERM process is necessary for all employment-based green card categories requiring an employer sponsor. The employer must obtain a prevailing wage determination, advertise the job, and conduct prospective employee recruitment. If successful, the DOL will issue a certification for inclusion in the green card petition. The employer sponsor must pay all PERM costs.

Step Two: Form I-140, Immigrant Petition for Alien Workers and Priority Date

Once the PERM is approved, your employer will need to file USCIS Form I-140, Immigrant Petition for Alien Workers within 180 days. Here, the employer must prove that both you and the proposed position meet the relevant qualifications. I-140 adjudication can take months, but the employer can pay extra for “premium processing” (action within 15 days). The USCIS I-140 approval notice will include an important bit of information: your priority date.

Step Three: Await Current Priority Date

Monitor the Department of State’s Visa Bulletin to determine when a green card will become available for your priority date, category, and country of nationality. The Visa Bulletin is updated monthly. If you submit a green card application too early, it will be rejected.

Step Four: Applying for Permanent Residency

The next step depends on where you are living (in the U.S. or abroad) and if you’re in the U.S., whether you’re able to “adjust status” and choose to do so.

Applying From Outside the United States

A prospective foreign working living outside the U.S. must go through what’s called consular processing. You (or your attorney) will receive correspondence from the National Visa Center (“NVC”) when your priority date becomes current.

You'll be applying for an "immigrant visa" (which leads directly to a green card) at a U.S. consulate or embassy abroad. The NVC works with the consulate to process the visa application, and will direct you to complete various required forms and pay fees. Different consulates might have different rules regarding fee payment, appointment scheduling, and so forth. Be attentive to any unique requirements.

Ultimately, you'll be able to schedule your immigrant visa interview at the consulate. That's where you'll be approved, and should receive your visa then or soon after. It will give you a limited time within which to enter the United States. Your green card will arrive by mail some weeks after.

Applying From Inside the United States

If you are lawfully present in the U.S. when a green card slot for your category becomes available, you may submit Form I-485, Application to Register Permanent Residence or Adjust Status to USCIS. Along with it, you'll need to submit biographical proof as noted in the “checklist of initial evidence” on the form’s webpage, medical examination documentation (Form I-693), a copy of your I-140 approval notice, and the appropriate fees.

Once USCIS receives your adjustment application, it can take several months to over a year to schedule and interview and make a decision. During that time, USCIS might issue a request for evidence (“RFE”) asking for additional documentation.

Once USCIS is satisfied, you will be scheduled to attend an interview where an immigration officer will ask you questions about yourself and the proposed employment. Under some circumstances, USCIS might waive the interview. USCIS will issue its determination to you via mail, and if approved, you will receive your green card through the mail as well.