The Employment-based U.S. Permanent Residency Process

In the vast landscape of immigration, the pursuit of an employment-based green card stands as a pivotal moment for many individuals seeking permanent residency in the United States.  The decision as to whether someone applies for permanent residency to some may be an easy one, but to others there is a degree of trepidation as to whether it is the right course of action, whether the benefits outweigh an often lengthy and expensive application process.

Below we discuss the process to secure an employment-based green card. By providing this overview we aim to understand the components of the process, and ultimately why processing can be protracted and expensive.  With this information, both individuals and their employers can decide whether it is the right course of action for all parties involved. 

The employment-based green card process is a multi-step procedure that requires careful navigation and timing, as each stage requires full understanding of the intricate U.S. immigration system.

I. Understanding the Employment-Based Green Card Categories:

The U.S. Citizenship and Immigration Services (USCIS) offers several employment-based green card categories, each catering to different professional backgrounds and skill sets. These categories include:

1. EB-1: Priority Workers - Reserved for individuals with extraordinary abilities in their respective fields, outstanding professors and researchers, and multinational executives and managers.
2. EB-2: Professionals with Advanced Degrees or Exceptional Ability - Targets individuals with advanced degrees or exceptional abilities in the arts, sciences, or business.
3. EB-3: Skilled Workers, Professionals, and Other Workers - Designed for skilled workers, professionals, and other workers with lower educational qualifications.
4. EB-4: Special Immigrants - Reserved for specific groups, including religious workers, employees of U.S. foreign service posts, and other unique categories.
5. EB-5: Immigrant Investors - Requires a substantial investment in a new commercial enterprise that creates jobs for U.S. workers.

For the purposes of this article, we will cover EB-1, EB-2, and EB-3 since these are the primary categories in which the vast majority of international workers applying for green cards will be made under.

II. PERM Labor Certification and Employer Sponsorship:

In most employment-based green card categories, the employer plays a crucial role in sponsoring the applicant. The process often begins with obtaining an approved PERM Labor Certification from the U.S. Department of Labor (DOL). This certification ensures that there are no qualified U.S. workers available for the job and that hiring a foreign national will not negatively impact the local job market.

In order to prove that there were no qualified U.S. workers for the position, the sponsoring company must place recruitment and receive applications during a 60-day period in order to demonstrate that no qualified U.S. workers applied for the position. Only then can the PERM Labor Certification case be filed with the DOL. 

Once the labor certification is secured, the employer files an immigrant petition (Form I-140) on behalf of the employee with USCIS. This step establishes the applicant's eligibility for a green card and includes evidence supporting their qualifications and the employer's ability to offer the intended employment.

While most employment-based permanent residency applicants will qualify under EB-2 or EB-3, which requires PERM Labor Certification, some will qualify for EB-1. EB-1 applications do not require a preceding labor certification. Instead, the first application they will file is an I-140. The three categories under EB-1 are (1) Extraordinary Ability, (2) Outstanding Professors/Researchers, and (3) Multinational Executives/Managers.

The first two EB-1 categories require significant documentation showing that the applicant is nationally or internationally known for their work in the field of endeavor. Such individuals typically have written articles, have many citations, and have proof of original contributions to their field such as a patent. 

Multinational managers are people who have managed personnel or an important function of their company at an office outside of the United States and are coming to the U.S. in a similar managerial capacity. 

III. Priority Dates and Visa Bulletin:

The employment-based green card process operates on a system of priority dates, which establishes an individual's place in the queue for visa availability. The Visa Bulletin, released monthly by the U.S. Department of State, provides information on the current visa numbers available for each category and country.

No country may account for more than 7% of the 140,000 employment-based immigrant visas that are available annually, a limit set by Congress. As the demand for green cards often exceeds the annual quotas for certain countries like India and China, individuals may find themselves waiting for their priority date to become current before proceeding with the final steps of the process. In some cases, this wait period could be many years. 

Generally speaking, higher preference categories result in shorter wait times because fewer people typically qualify for the higher categories. For example, a German national in the EB-1 preference category would not have a wait time at all. Whereas a German national in EB-2 would currently be facing a nearly 16-month wait, and it would be 18 months for EB-3. 

For nationals of India, the wait times for EB-1, EB-2, and EB-3 are 3 years + 5 months, 12 years, and 4 years + 8 months, respectively. For Indian nationals, more people are in the queue for EB-2 than EB-3, which is why the visa bulletin currently shows a longer wait time for EB-2. Indeed, currently EB-2 for Indian nationals is currently the longest wait time for any category. 

IV. Adjustment of Status or Consular Processing:

Once the priority date is current, individuals can file for adjustment of status within the U.S. This is also the stage where family members are added to the permanent residency process. However, it should be noted that this only includes spouses and children. Other family members could apply at a later time, but they would go through the family-based process rather than the employment-based process. 

Adjustment of status involves submitting Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS. The current processing time for an I-485 application is typically 2-3 years. There is no premium processing options or I-485 applications, so applicants are stuck with the USCIS wait time. However, applicants can receive a travel document that will allow them to travel internationally while waiting for their green card. Also, applicants over the age of 14 can apply for work authorization. 

As demonstrated, the employment-based green card process is a multifaceted journey that demands careful planning, collaboration with employers, and adherence to immigration regulations. As individuals navigate the intricate steps, understanding the specific requirements of their immigrant visa category, staying informed about the ever-changing immigration landscape, and maintaining patience throughout the process are crucial for achieving the ultimate goal of obtaining permanent residency in the United States. Once permanent residency is gained however individuals become free from immigration control and can relax a little!