Overview of the Employment Based Permanent Residency Application
For almost all foreign applying in the employment-based preference categories, the permanent resident or green card process consists of three key steps:
- Labor certification; Required in all EB-3 petitions and most EB-2 petitions
- I-140 Immigrant Petition for Alien Worker (I-140 Immigrant Petition); and
- I-485 Application to Register Permanent Residence or Adjust Status (I-485 Application) or consular processing of an immigrant visa.
Before a foreign national in the 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 the U.S. Department of State's monthly Visa Bulletin. At that time, the foreign national may either file an I-485 Application to adjust status if in the United States or proceed with consular immigrant visa processing if outside of the United States.
Each year approximately 140,000 employment-based immigrant visas are available for foreign nationals seeking to immigrate to the United States based on their job skills. As there are inevitably more foreign nationals seeking permanent residence than immigrant visas available, the United States Citizenship and Immigration Services (USCIS) utilizes a system to allocate visas according to preference categories and countries of birth.
Employment-Based Preference Categories
To fully understand the U.S. immigrant visa system for employment-based visas, it is important to appreciate the different employment preference categories. There are five employment-based preference categories:
- EB-1: The first preference category 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 United States, 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. Labor Certification is not required for this category.
- 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. Labor Certification is not required for this category.
"Per Country" Visa Quotas
In addition to the limits placed on the number of employment-based immigrant visas available overall, there are "per country" quotas placed on the number of visas allocated to any particular 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.
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 particular country is "current," "oversubscribed," or "unavailable". Current categories are designated with a "C" and, accordingly, the USCIS will accept I-485 Applications or proceed with consular immigrant visa processing for individuals in such categories immediately. Unavailable categories are assigned a "U" which means the USCIS is not accepting any I-485 Applications or conducting consular immigrant visa processing for individuals in that category.
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 November 2009 Visa Bulletin may state that the cut-off date for individuals born in India in the EB-2 category is January 22, 2005. Thus, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates before January 22, 2005.