Employment-Based Permanent Residence
North Carolina Visa Attorney for Green Card Through Employment
The two most common means of obtaining an immigrant visa for permanent residence are Green Card through Family-based petition and Green Card through Job, through employer–based petition.
A US employer may sponsor a foreign national employee for permanent residence or “green card”). In most cases, before USCIS will issue an employment-based immigrant visa to a foreign national, the employer first must obtain a “labor certification” from the US Department of Labor confirming that there are an insufficient number of US workers able, qualified and willing to perform the work for which the foreign national is being hired. The Department of Labor also must confirm that employment of the foreign national will not adversely affect the wages and working conditions of the US workers. Under certain circumstances, the job offer requirement as well as labor certification can be waived if the foreign national can demonstrate that s/he is working in the national interest of the United States. There are other categories that do not require labor certification, such as persons of extraordinary ability, outstanding professors/researchers and multinational executives or managers.
What Are the Employment-Based Permanent Residence Preference Categories?
The employment-based immigrant visa or permanent residence (“green card”) is a complex process. The preference system is a method, based on categories (or "preferences"), of distributing the limited number of immigrant visa numbers available each year. Obtaining an immigrant visa number is an essential step in the immigration process, and it means that an immigrant visa has been assigned to you.
People who want to become immigrants based on employment or family are divided into preference categories, and if their immigrant visa petition is approved, they must wait for an immigrant visa number to become available according to the limited number of visas allowed in each preference category each year. In family-based immigration an exception exists for immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, who do not have to wait for an immigrant visa number to become available once the immigrant visa petition filed for them is approved. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens.
Because the number of immigrant visa numbers that are available each year is limited, you may not get an immigrant visa number immediately after your immigrant visa petition is approved. The visa availability and priority dates varies by preference category.
In some cases, several years could pass between the time USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa number. Because U.S. law also limits the number of immigrant visas available by country, you may have to wait longer if you come from a country with a high demand for U.S. immigrant visas.
For employment-based permanent residence there are five specific preference categories. In some of the employment-based preference categories, the foreign national applicant's prospective employer or agent must first obtain a labor certification approval from the Department of Labor. Once received (if required), the employer then file an Immigrant Petition for Alien Worker, Form I-140, with USCIS.
Employment First Preference (EB1): Priority Workers
A First Preference applicant must be the beneficiary of an approved Immigrant Petition for Foreign Worker, Form I-140, filed with USCIS. Labor certification is not required for any of the Priority Worker subgroups.
- Priority Workers receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas.
- There are three sub-groups within this EB1 category:
- Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. These applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. These applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.
- Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
- Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
Employment Second Preference (EB2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest. In the case of a national interest waiver, the applicant may self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.
The EB2 “advanced degree professionals and aliens of exceptional ability” category includes individuals who hold a U.S. academic professional degree at the Masters level or higher, as well as those individuals whose expertise is significantly above that ordinarily encountered in the sciences, arts or business. Individuals immigrating in this preference will be required to obtain labor certification.
There are two subgroups within this category:
- Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.
- Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Employment Third Preference (EB3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All EB3 workers generally require labor certification approved by the Department of Labor. Skilled Workers, Professionals, and Unskilled Workers (Other Workers) receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference and Second Preference categories.
The “skilled workers, professionals and other workers” category is split into two subcategories: (1) skilled workers and professionals, and (2) other workers. The skilled workers and professionals subcategory includes individuals with offers to work in U.S. in jobs requiring two years or more of post-secondary education, training and/or experience. The unskilled workers subcategory includes individuals in positions requiring less than two years of experience, post-secondary education and/or training. A total of 30,000 visas per year are available to individuals immigrating in the skilled workers and professionals subcategory; only 10,000 visas per year are available in the unskilled workers subcategory.
There are three subgroups within this category:
- Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
- Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
- Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.
Employment Fourth Preference (E4): Certain Special Immigrants
A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad. Labor certification is not required for any of the Certain Special Immigrants subgroups. Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.
Special interest workers include certain individuals who have been employed by the U.S. government, religious workers and other groups of special concern to the U.S.
There are many subgroups within this category, but the group generally includes certain employees and former employees of the US government abroad, Ministers of Religion, and Certain Religious Workers.
Employment Fifth Preference (EB5): Immigrant Investors
Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation. Select Immigrant Investor Visas to learn more about this employment-based category.
The EB5 investor Visa category is for individuals who invest $1 million or more in a new commercial enterprise in the U.S., creating employment for not less than ten (10) U.S. employees. The investment can be as low as $500,000 in designated areas of high unemployment or rural areas. The investment must be active and not passive and must be ongoing for two years before unconditional permanent resident status will be granted.
Can My Family Members also Receive Immigrant Visas? Based on your approved petition, your spouse and minor unmarried children under 21 years may apply for immigrant visas with you. Like you, they must also fill out required application forms, obtain required civil documents, pay the required fees, and undergo medical examinations. Same-sex spouses of US citizens and Permanent Residents along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses.
Gerald Goulder is an experienced North Carolina immigration lawyer helping individuals and businesses in North Carolina and throughout the United States and around the world with employment-based permanent residence (“green card” through employment). US immigration law is federal law. This enables Goulder Immigration Law Firm to assist individuals and companies throughout the U.S. and around the world.
For solutions to your US permanent residence through employment, call immigration attorney Gerald Goulder at Goulder Immigration Law Firm (336) 808-1119 or ask him a question using this online email form: