Employment Based Green Card Application
For many foreign nationals applying in the employment-based preference categories, the permanent resident or green card process consists of three key steps:
Before a foreign national in the employment-based green card, or permanent residency, EB-2 or EB-3 category can apply for consular processing of an immigrant visa or adjust status, they must have an approved I-140 Immigrant Petition. The I-140 Immigrant Petition can be filed once the labor certification, if required, has been approved.
The last step in the green card process can be completed when a foreign national’s priority date is current on both the U.S. Department of State’s and U.S. Citizenship and Immigration Services (USCIS)’ monthly Visa Bulletin. At that time, the foreign national may either file an I-485 Application to adjust status if in the U.S. or proceed with consular immigrant visa processing if outside of the U.S.
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What is the Employment Green Card System?
Each year approximately 140,000 Employment-Based Permanent Residency immigrant visas are available for foreign nationals seeking to immigrate to the U.S. based on their job skills. As there are inevitably more foreign nationals seeking permanent residence than immigrant visas available, the U.S. Citizenship and Immigration Services (USCIS) utilizes a system to allocate visas according to preference categories and countries of birth.
Employment-Based Permanent Residency Preference Categories
To fully understand the U.S. immigrant visa system for employment-based permanent residency visas, it is important to appreciate the different employment preference categories. There are five employment-based preference categories:
- EB-1: The first preference category for employment based visas is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated through sustained national or international acclaim; outstanding professors and researchers who can demonstrate international recognition for their outstanding achievements in a particular academic field; or multinational managers or executives.The first preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the fourth and fifth preference categories. No Labor Certification required.
- EB-2: The second preference category is for foreign nationals that possess, and whose positions require, an advanced degree or a Bachelor’s degree plus five years of progressive experience; or foreign nationals that have “exceptional ability” – a degree of expertise significantly above that ordinarily encountered – in the sciences, arts, or business.The second preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first preference category. Most applicants in this category require the filing of a Labor Certification unless you can obtain a National Interest Waiver.
- EB-3: The third preference category applies to professionals that possess a Bachelor’s degree or higher and are working in a position for which an insufficient number of qualified U.S. workers are available; or certain skilled and unskilled workers that are working in a position for which there are an insufficient number of qualified U.S. workers available.The third preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first and second preference categories.
- EB-4: The fourth preference category is reserved for special immigrants including religious ministers and workers, broadcasters, Iraqi/Afghan translators, Iraqis who have assisted the U.S., international organization employees, physicians, armed forces members, Panama Canal Zone employees, retired NATO-6 employees, and spouses and children of deceased NATO-6 employees.The fourth preference category receives up to 7.1% of the annual number of visas available worldwide. No Labor Certification required.
- EB-5: The fifth preference category is for certain foreign national business investors who have invested a significant amount of money (either $1,000,000 or $500,000 if the investment is made in a “targeted employment area”) in a new commercial enterprise that employs at least 10 full-time U.S. workers.The fifth preference category receives up to 7.1% of the annual number of visas available worldwide. No Labor Certification required.
Click here to read more about the Employment-Based Permanent Residency here.
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“Per Country” Visa Quotas
In addition to the limits placed on the number of Employment-Based Permanent Residency immigrant visas available overall, there are “per country” quotas placed on the number of visas allocated to any country. These per country limits are designed to prevent individuals born in any one country, regardless of the individual’s citizenship, from receiving more than 7% of the total number of employment-based and family-based visas available annually.
Moreover, no more than 2% of the annual visas available can be issued to dependents born in any one country.
Visa Bulletin
The U.S. Department of State issues a monthly Visa Bulletin that summarizes the availability of immigrant numbers during that specific month for both family-based and employment-based visas.
The Visa Bulletin will indicate whether each preference category cross-referenced with a country is “current,” “oversubscribed,” or “unavailable” – those with a “current” priority date may apply for an immigrant visa. Further, the Visa Bulletin includes “Final Action Dates” and “Dates for Filing Applications.”
Unless otherwise indicated by the U.S. Citizenship and Immigration Services (USCIS), individuals seeking to file applications must use the “Final Action Dates” when determining if they can apply. If USCIS determines there are more immigrant visas available for the fiscal year than there are known applicants, USCIS will indicate that applicants may instead use the “Dates for Filing Applications.”
If the preference category for a specific country is oversubscribed, a cut-off date will appear on the Visa Bulletin. In such categories, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates prior to the cut-off date.
For example, the June 2020 Visa Bulletin may state that the cut-off date for individuals born in India in the Employment-Based Permanent Residency EB-2 category is June 12, 2009. Thus, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates before June 12, 2009.
Priority Date Explained
Though the I-140 Immigrant Petition cannot be filed until the labor certification is approved, the date the labor certification is filed with the Department of Labor (DOL) establishes a foreign national’s priority date. If no labor certification is required, the date the I-140 Immigrant Petition is filed becomes the priority date.
The priority date is essentially a foreign national’s “place in line” for adjustment of status or consular immigrant visa processing. Once a foreign national’s priority date is current on the Visa Bulletin, the foreign national is eligible to complete the green card process.
Transferability Criteria
Due to lengthy adjudication times, it is possible that a foreign national may change employers or positions prior to the completion of the green card process. A change in position and/or employer will generally require the filing of a new labor certification and I-140 Immigrant Petition if the foreign national does not intend to return to the previous employer/position.
Further, if a foreign national in the Employment-Based Permanent Residency EB-3 category is promoted to an EB-2 position, they may desire to file a new labor certification and I-140 Immigrant Petition if processing times in the EB-2 category are quicker.
Fortunately, if a foreign national’s original I-140 Immigrant Petition has been approved in the first, second, or third employment-based preference category, their priority date can be transferred to a newly filed labor certification/I-140 Immigrant Petition in the first, second, or third employment-based preference category.
Additionally, the transferability of a priority date may not be affected if the previous employer subsequently withdraws the original, approved I-140 petition. It is important to note that a priority date will only be transferable if the original I-140 Immigrant Petition has been approved.
Transferability Example
To illustrate, a foreign national may have an approved labor certification from an EB-3 PERM filed in 2005 and an approved I-140 Immigrant Petition. The foreign national is then promoted to an EB-2 position and an EB-2 PERM is filed in 2009.
Since the original I-140 Immigrant Petition has been approved, the foreign national can transfer their 2005 priority date to the EB-2 PERM filed in 2009. It is incumbent upon the petitioning party, however, to notify USCIS of the earlier priority date and request the earlier priority date be transferred to the new petition.
Employment-Based Green Card Interview Prep Tips
