About 140,000 Green Cards are up for grabs every year for foreign nationals who wish to immigrate permanently to the US based on their skills, education, and work experience.
To be eligible for one of these Green Cards, you will need to fall under one of the 4 prescribed categories, namely EB1, EB2, EB3, EB4, and EB5.
Where the letters E and B stand for Employment Based and the numbers (1 - 5) indicate the preference (first to fifth).
The EB4 and EB5 are for special immigrants and business investors respectively and won’t be discussed at length in this article.
Since they aren’t relevant to international students and working professionals already in the US, or those who plan to immigrate to the US.
EB1 - First Preference Employment Green Card
This is for foreign nationals with extraordinary ability in their field, outstanding professors or researchers, or certain multinational executives or managers.
Put simply, extraordinary ability in one’s field means that you MUST have attained a level of expertise that puts you at the very top of your field. This is usually shown by the receipt of national and or international awards in one’s field.
Outstanding professors and researchers can demonstrate their outstanding achievements by way of an international recognition of their work, and must be pursuing tenure or tenure-track teaching or research as a university or private employer.
Contrary to popular belief, you do not need to be a Nobel prize winner or an Olympic medalist to be eligible for the EB1 - first preference green card as there are several other ways of demonstrating your eligibility for the EB1.
EB2- Second Preference Employment Green Card
This is for foreign nationals who are members of professions with an advanced degree (Masters, PhD) or at least 5 years of progressive work experience post baccalaureate and foreign nationals with exceptional ability.
Under the EB2 second preference is a special category called the EB2-National Interest Waiver EB2-NIW. This sub category is for foreign nationals who do not want to go through what’s called a Labor Certification process that’s required of the regular EB2 Green Card category.
As expected, you would need to meet certain criteria in order to apply for your Green Card under the EB2-NIW category.
EB3 - Third Preference Employment Green Card
The EB3 green card category is divided into 3 sub-categories according to the level of training or education required to perform their jobs. These are Unskilled Workers, Skilled workers, and Professionals.
The Unskilled Workers category is for people that perform jobs that require less than 2 years of training or experience, while the Skilled Workers category are for persons whose jobs require at least 2 years of training or experience.
The Professionals EB3 Green Card category are for persons whose jobs require at least a bachelor's degree to perform.
Who Can File A US Employment Based Green Card?
With the exception of the EB1 through extraordinary ability and EB2-NIW paths that allow you to self petition, all other employment based Green Card categories require a US employer to file a petition with the United States Citizenship and Immigration Services (USCIS).
Furthermore, with the exception of the EB1 category and the EB2-NIW subcategory, all other employment based categories require an employer to file a Labor Certification with the United States Department of Labor before the Petition for an Alien Worker (called the Form I-140) can be filed with USCIS.
Steps to Applying for an Employment Based Green Card
Generally, there are three steps required to get an employment based green card status.
The first step is to obtain an approved labor certification from the US Department of Labor.
The second step is to file a Form I-140 petition with USCIS and the third step is to file a Form I-485 petition with USCIS.
With the exception of the EB1 category and the EB2 National Interest Waiver category, all other employment-based categories have to go through step 1 - the Labor Certification step.
Also as discussed earlier, all other employment-based categories require a US employer to file a petition on behalf of the foreign national. The only exceptions are the EB1 through extra ordinary ability and the EB2 National Interest Waiver.
What Is the Labor Certification?
Obtaining an approved labor certification is a step that must be undertaken by a US employer. An approved labor certification provided by the US department of labor certifiers to USCIS that:
- There are no sufficient US workers able, willing, qualified, and available to take up the job opportunity at the intended area of employment and
- The employment of the foreign national would NOT adversely affect the wages and the working conditions of other similar US workers for employment-based categories
The Labor Certification must be approved before moving on to the next step, which is filing an I-140 petition with USCIS.
An approved Labor Certification from the US Department of Labor comes with the validated period of six months, which means that an employer must follow your I-140 petition within six months from receiving an approval of the Labor Certification.
What Is the Form I-140?
The I-140 also known as an Immigrant Petition for an Alien Worker is typically filed by a US employer on behalf of a foreign national.
Whoever files this petition with USCIS is called the petitioner and whoever benefits off of this petition is called the beneficiary.
With the exception of the EB2NIW and the EB1 through extra ordinary ability, a foreign national cannot be both the petitioner and the beneficiary of an I-140 petition filed to USCIS.
What Is the Form I-485?
The Form I-485, also called the Application to Register Permanent Residence or Adjust Status is adjudicated by USCIS only after the approval of the I-140.
In other words, if the Form I-140 is not approved, the Form I-485 can't be processed completely by USCIS.
What is a Priority Date for Employment Based Green Cards?
The Priority Date is the day US government agencies - such as the Department of Labor or the Department of Homeland Security - record as the date a foreign national expresses an interest to become a Permanent Resident of the US through an appropriate immigration petition.
For foreign nationals in some EB2 the categories and all EB3 categories that have to go through the labor certification process, your priority date will be the date the US Department of Labor receives an application for a Labor Certification from your employee.
While for the other employment-based categories, all EB1 categories and the EB2-NIW category that don't have to go through labor certification, the Priority Date will be the date your I-140 petition is received by USCIS.
What is Concurrent Filing for Employment Based Green Cards?
Now there's also a possibility of filing both an I-140 petition and an I-485 petition to USCIS at the same time, this is known as concurrent filing
It is possible for certain foreign nationals to find out if they are eligible for a concurrent filing, you would have to check out the US Visa Bulletins.
What is the timeline for a US Employment Based Green Card?
Timeline for the Labor Certification Process
Now, let's talk about the general timelines for each of these steps. Starting with the labor certification step, the US Department of Labor requires a US employer to first test the labor market before they can submit an application for the Labor Certification.
During this "test of the labor market", the US employer must demonstrate to the US Department of Labor that they were not able to find any US worker who is able, willing, qualified, and available to take up the job in question under the prevailing wage set by the US Department of Labor.
The processing time for a labor certification could take as long as three months and the time required of a US employer to test the labor market could take as long as six months.
So when combined the timeline to obtain and approve the Labor Certification from US Department of Labor could take as long as 12 months.
Timeline for the Form I-140 Step
As for the Form I-140 USCIS has an option of expediting the processing time down to 15 calendar days for certain categories, without the expedited processing, the timeline for USCIS to adjudicate an I-140 petition could take as long as 24 months.
Timeline for the Form I-485 Step
And finally, we have the I-485 petition. Now, in the case of the I-485 petition, USCIS does not provide any expedited processing.
And in some cases, USCIS could take as long as 36 months to adjudicate your I-485 petition, depending on how backlogged the USCIS service centers are.
Also keep in mind that foreign nationals whose Priority Dates are not current in the US visa bulletin charts would have to wait until their dates occurrence to file the I-485 petition.
For certain foreign nationals waiting for priority dates to be current in the visibility in charts could take upwards of 10 years.
Foreign nationals with an approved Form I-485 petition who reside outside of the US would go to a US consulate or embassy to apply for an immigrant visa to the US.
While foreign nationals who currently reside in the US can change their status from a non-immigrant status to the green card status without leaving the United States.
So as you can see, depending on your country of birth and your employment base category, the timeline to get a green card could take upwards of three years. Foreign nationals with a pending I-485 petition with USCIS may apply for a temporary work authorization, also called an Employment Authorization Document (EAD).
They may also apply for an Advanced Parole document that allows them to leave and enter the US while an I-485 petition is pending.
Disclaimer: The content in this blog post should not be considered as legal advice, given the complexities of the US immigration system, we highly recommend you seek a licensed attorney for personalized immigration advice.