Employment Based Green Card

Image of Green Card in a person's hand.

Permanent residents (green card holders) are non-US citizens who have been authorized to live and work permanently in the United States. Most people get the green card either family based green card or employment based green card. Other ways to get a green card are political asylum basedrefugee basedadoption based or diversity lottery based. In general, you can get a green card based on the fact that you have a permanent employment opportunity in the United States. There are a few categories where a sponsoring employer is not required.

Wherever a job offer is required for sponsoring a green card, it is for the future permanent job that the person will do after getting the green card. Therefore, it is possible for the employer to sponsor the alien’s green card even if the beneficiary is currently not working for them. However, in practice, most aliens are already working for the sponsoring employer on a non-immigrant work visa such as H1B, L1 etc. when the green card is filed.

Getting a green card has many benefits. However, it also puts many restrictions on the person to retain the green card.

Employment Based Greencard Process

Getting an employment based green card is a multiple step process and it generally takes several years to get it. It can be frustrating experience for most people having to wait so long to get the green card, but that is the reality.

Spouses and minor children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.

  • Foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of USCIS’s paths to lawful permanent residency.

  • For most employment categories, the sponsoring employer must file a labor certification with the Department of Labor certifying that no qualified US workers are available or willing to do the job that the alien will perform for them. To prove this situation, the employer usually needs to include proof of advertising for the specific position, skill requirements for a particular job, verification of the prevailing wage for a position and the employer’s ability to pay. Labor certifications are filed through an electronic system known as PERM. Certain employment categories do not require labor certification approval.

  • If required, once the labor certification is approved, the employer must file Form I-140, Immigrant Petition for Alien Worker. If the priority date is current, it is possible to concurrently file Form I-140 with Form I-485, Adjustment of Status.

  • Department of State must give an immigrant visa number to the applicant. It is only given when the priority date is current. Before proceeding to the next step, the applicant must wait until the priority date is current.

  • Once the priority date is current, the applicant has two options. If the applicant is already in the U.S., he/she can apply for adjustment of status. If the applicant is outside the U.S., he/she can go through consular processing.

    Look at the discussion of adjustment of status vs. consular processing before deciding which path would be more suitable to you.

Employment Based Green Card Categories and Quotas

Each year, maximum 140,000 applicants are awarded green card in employment based categories. Each country is limited to receive 7% of 140,000 green card (which is 9,800) no matter how tiny an island it is or how big or populous the country it is (like India, China). They are further divided into five categories which are explained below. Some categories require labor certification from the Department of Labor, while others don’t.

EB-1 Priority WorkersThese include

28.6% of worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Therefore, each country gets 9800 x 28.6% = 2802 + numbers not used in EB4 and EB5.

Many people would like to file the green card in this category because the priority dates are current most of the times while there is a long wait in other employment based categories. However, only few people qualify for it and the applications are very strictly scrutinized. Also, a labor certification-based EB2 or EB3 can’t simply be switched over to EB1 when the person has more work experience.

Some candidates may qualify for either Persons of Extraordinary Ability or Outstanding Professors and Researchers, or both. Some of those persons may also qualify for the EB2, or National Interest Waiver (NIW) category. Some persons who previously would have opted for NIW now consider filing EB1, just as a backup to be able to file adjustment of status and obtain EAD and advance parole for themselves and their family members. However, if the EB1 case is denied, the person would lose the EAD and advance parole.

EB-2 Professionals with advanced degrees or persons with exceptional ability

These include

28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Therefore, each country gets 9800 x 28.6% = 2802 + numbers not used in EB1.

It is easier to get the I-140 approved under EB3 than under EB2, as the job requirements in EB2 are carefully scrutinized. But it is advantageous for people born in over subscribed countries like India and China to apply in EB2 because processing a greencards in EB2 takes much less time than in EB3 for them.

EB-3 Skilled or professional workers

These include

Skilled workers, professionals and other workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other workers”. Therefore, each country gets 9800 X 28.6% = 2802 + numbers not used in EB2.

Schedule A Workers: Employment First, Second, and Third preference Schedule A applicants are entitled up to 50,000 “recaptured” numbers.

E3 – Professionals and skilled workers
E3 (EW) – Other workers

EB-4 Special Immigrants

These include

7.1% of the worldwide level. Therefore, each country gets 9,800 X 7.1% = 695.

EB-5 Investors (Employment Creation)

Aliens who are able to invest $1,800,000 and create at least 10 new full time jobs. It is possible in certain limited situations that an investment of $900,000, if it creates at least 5 new jobs, may be acceptable.

7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395. Therefore, each country gets 9,800 X 7.1% = 695.

E5 (C5) – Investors who will create employment outside targeted areas
E5 (T5) – Investors who will create employment in a target area

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