Lawful Permanent Residence (Immigrant Visas)

“Employment-Based Green Cards”

A foreign national who wishes to remain in the U.S. beyond the brief period of time allowed from a temporary visa (“nonimmigrant visa”) should apply for lawful permanent residence (“immigrant visa”).

Lawful permanent residence (LPR) is more commonly known as a green card because the physical ID card given to foreign nationals in LPR status is green. As an LPR the foreign national has the legal right to live in the U.S. permanently. They are authorized to work in the U.S. and enjoy many of the same rights as citizens, though they can’t vote in federal, state or local elections.

While there are different paths to obtaining a green card, the following provides information regarding employment-based green cards.

Employment-Based (EB) Green Card Process

The flow chart graphic provides a general overview of the employment-based green card process.

In order to obtain an employment-based green card the foreign national must qualify under one of the five U.S. designated preferences. The U.S. designates employment-based green cards into five (5) preferences: EB-1, Priority Workers; EB-2, Professionals Holding Advanced Degrees and Persons of Exceptional Ability; EB-3, Skilled Workers, Professionals, and Unskilled Workers; EB-4, Certain Special Immigrants; EB-5, Immigrant Investors. The qualifications of each preference are explored in detail in subsequent sections. For the purpose of understanding the green card process, it is important to note that the number of steps and time required are dependent upon the preference. EB-2 and EB-3 green cards generally require the precursory PERM step, while the other preferences begin with the Immigrant Petition.

PERM

The PERM (Program Electronic Review Management) process, also known as "Labor Certification," is a mandatory initial step for most employment-based green card applications in the United States, particularly for EB-2 and EB-3 categories. Its primary purpose is to ensure that hiring a foreign worker for a permanent position will not displace qualified U.S. workers or adversely affect their wages and working conditions. 

The PERM process involves several key stages:

1. Prevailing wage determination (PWD)

Before the employer can begin advertising the position, they must obtain a Prevailing Wage Determination from the Department of Labor (DOL). The DOL determines the average wage paid to workers in similar occupations in the intended area of employment, ensuring that the foreign worker is paid fairly. The employer files a Prevailing Wage Determination request with the DOL, which can take several months to process.

2. Recruitment efforts

The employer must conduct a recruitment campaign to demonstrate that no qualified U.S. workers are available and willing to fill the position. This involves several mandatory steps:

    • State Workforce Agency (SWA) Job Order: The employer must place a job order with the SWA in the relevant area of employment for at least 30 consecutive days.

    • Newspaper Advertisements: Two advertisements must be placed on two different Sundays in a newspaper of general circulation in the area of employment.

    • Notice of Filing (NOF): A notice must be posted at the worksite for 10 consecutive business days, informing current employees about the job opening and the employer's intention to file a PERM application.

For professional positions (requiring a bachelor's degree or higher), the employer must also conduct three additional recruitment steps from a list provided by the DOL. These options include advertising on the employer's website, using a job search website, participating in job fairs, and more.

Employers must meticulously document all recruitment efforts, including copies of ads, resumes received, and reasons for rejecting U.S. applicants. These steps must be completed within 180 days before filing the PERM application, with certain steps (like the SWA job order) requiring a 30-day waiting period before the filing can occur. 

3. Filing the PERM application (ETA Form 9089)

Once the recruitment efforts are complete and the waiting periods have passed, the employer files Form ETA 9089, the Application for Permanent Employment Certification, with the DOL. The application is typically filed electronically and includes detailed information about the employer, the position, the foreign worker's qualifications, and the recruitment process. The filing date of the PERM application is important because it establishes the foreign worker's priority date, which determines their place in line for an immigrant visa. 

4. DOL processing and possible audit

The DOL reviews the PERM application to ensure compliance with all regulations. The processing time can vary, but it's currently taking approximately 12 months for cases that are not selected for an audit. If the PERM is certified (approved) by the DOL, the employer files Form I-140, Immigrant Petition for Alien Worker.

Immigration Petition

The immigrant petition demonstrates that a foreign national meets the requirements for a green card based on their employment. It essentially shows that the employer has offered a legitimate job, the foreign national worker qualifies for that job and the employer can afford to pay the offered wage.

The immigrant petition is typically filed by the employer. The employer (“petitioner”) will file the Form I-140 (Immigrant Petition for Alien Worker), on behalf of the foreign national (“beneficiary”). Along with the I-140 the employer will provide a copy of the approved PERM if required, proof of the job and job description, proof of ability to pay, among other documents. The foreign national will also provide documentation of their job qualifications (i.e. resume/cv) and visa applicability.

A few immigrant petitions such as the EB-1A and EB2-NIW can be petitioned by the employer or self-petitioned by the foreign national. The process involves proving eligibility based on exceptional ability or national interest and then filing the appropriate forms with USCIS. The qualifications for these immigrant preferences are detailed in subsequent sections. 

If USCIS determined that all necessary requirements were met for the petition, USCIS will send a Notice of Action Form I-797, signifying the petition has been approved. The foreign national is then applicable to move to the next step in the green card process, so long as a visa is available at the time.

**Waiting for a Visa Number and the Visa Bulletin Explained  

  • When a visa number is not immediately available, processing the foreign national’s application is temporarily paused by USCIS until a visa number becomes available. The limited immigrant visas become available based upon the foreign national’s country of birth, visa preference, and the date of filing or final action date (found on Form I-797). The DOS Visa Bulletin provides a monthly update that indicates when the foreign national can move forward with filing their Green Card Application.

Once the I-140 has been approved and a visa is available, the foreign national can proceed to filing their Green Card Application.

Green Card Application

It is important to note that up to this point the application process has been heavily reliant on the employer, however, the green card application step switches the focus to the foreign national.

After USCIS has approved the I-140, the foreign national will apply for their green card through an adjustment of status in the U.S. or through the U.S. Department of State, National Visa Center (NVC) outside of the U.S.

If applying outside the U.S., USCIS will transfer the foreign national’s case to the NVC. The NVC will then guide the foreign national through the process in their system. Please see the U.S. Department of State, Immigration Visa Process Site for more information.

The foreign national applying for adjustment of status, will file Form I-485, Application to Register Permanent Residence or Adjust Status. The form will request detailed information about the foreign national such as country of birth, previous address, employment history, biometric information (eye color, hair color, weight), information about family, and general eligibility and inadmissibility grounds. Each question should be answered truthfully and to the best of the foreign national’s knowledge. The foreign national will also need to submit additional documentation and evidence including but not limited to proof of visa history, photographs, and marital records.

The foreign national is also required to submit Form I-693, Report of Immigration Medical Examination and Vaccination Record). See USCIS website for the form and instructions, Form I-693, Report of Immigration Medical Examination and Vaccination Record.

Unfortunately, USCIS can take months to years to process the I-485, the current processing times are provided by USCIS, Check Case Processing Times. The long processing times are problematic for the foreign national because they are not allowed to travel during this time and may require additional work authorization. Therefore, the foreign national will also want to file Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records with the initial I-485 application. The forms can all be submitted together, but USCIS will process the I-131 and I-765 more quickly. The I-131 allows the foreign national to travel outside the country while their I-485 is still pending. The I-765 will provide work authorization to the foreign national while their I-485 is pending.

Appointments and Interviews

After the foreign national has submitted their green card application, but before it has been approved, USCIS will request to collect the foreign national’s biometric information. The purpose of the biometrics appointment is to verify the applicant’s identity and conduct the necessary background checks. During the appointment, USCIS will collect fingerprints, a photograph, and a signature from the foreign national. The fingerprints will be used to run a background check, including criminal background check with the FBI.

The USCIS notice for the biometric appointment will provide the date, time, and location of the appointment. The foreign national can reschedule their appointment, if necessary, but its best to do so promptly as waiting could cause delays in the overall green card process. Rescheduling the appointment can be completed through their USCIS account.

During this waiting period between the green card application and the decision, USCIS can also request an interview. Unlike the biometrics appointment, not every foreign national is required to attend an interview. USCIS can request an interview for a green card application to verify information, assess eligibility, and ensure the application is not based on fraud.

USCIS will continue to process the foreign national’s green card application with the completion of the biometrics appointment and if applicable the interview.

Decision

USCIS provides a decision on the foreign national’s case. If approved, the foreign national will receive their Green Card. They are now a Lawful Permanent Resident!

Employment-Based Green Card Visa Preference Qualifications

EB-1A Extraordinary Ability

The EB-1A Extraordinary Ability preference is for foreign nationals who are at the top of their given field. The employer can sponsor the petition or the foreign national can self-sponsor the petition. The following provides the criteria for an EB-1A according USCIS policy in Volume 6, Part F, Chapter 2, of the USCIS Policy Manual:

  • “A foreign national must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

  • In order to demonstrate an individual has sustained national or international acclaim and that their achievements have been recognized in their field of expertise, they must either include evidence of a one-time achievement (major internationally recognized award) or 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

    • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence

    • Evidence of your membership in associations in the field which demand outstanding achievement of their members

    • Evidence of published material about you in professional or major trade publications or other major media

    • Evidence that you have been asked to judge the work of others, either individually or on a panel

    • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field

    • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media

    • Evidence that your work has been displayed at artistic exhibitions or showcases

    • Evidence of your performance of a leading or critical role in distinguished organizations

    • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field

    • Evidence of your commercial successes in the performing arts.

  • The individual seeks to enter the U.S. to continue work in the area of extraordinary ability

  • The individual’s entry into the United States will substantially benefit the U.S. in the future.”

EB-1B Outstanding Professors and Researchers

The EB-1B Outstanding Professors and Researchers preference are for individuals who are exceptional in an academia or research area and internationally recognized for their achievements. However, EB-1B’s must be petitioned by an employer. The following provides the criteria for an EB-1B according USCIS policy in  Volume 6, Part F, Chapter 3, of the USCIS Policy Manual:

  • “The individual must also show that they have at least 3 years of experience in teaching or research in the academic area. They must also be entering the U.S. in order to pursue tenure or tenure track teaching or a comparable research position at a university, institution of higher education, or private employer.

  • In order to demonstrate they are an outstanding professor or researcher; they must include evidence of 2 of the 6 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

    • Evidence of receipt of major prizes or awards for outstanding achievement

    • Evidence of membership in associations that require their members to demonstrate outstanding achievement

    • Evidence of published material in professional publications written by others about the alien's work in the academic field

    • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

    • Evidence of original scientific or scholarly research contributions in the field

    • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

  • In addition to meeting at least 2 of the 5 criteria, the individual must provide an offer of employment from the prospective U.S. employer. The private employer must show documented accomplishments and that it employs at least 3 full-time researchers. No labor certification is required.”

EB-1C Multinational Executive

The purpose of the EB-1C (Multinational Executive/Manager) visa is to allow multinational companies to transfer their executives or certain managers from a foreign office to a related U.S. office on a permanent basis. This category enables foreign companies to expand their operations into the U.S. by bringing experienced leadership to manage and oversee their U.S. subsidiaries or affiliates. The following provides the criteria for an EB-1C according USCIS policy in   Volume 6, Part F, Chapter 4, of the USCIS Policy Manual:

  • “The petitioning employer must be a U.S. employer and intend to employ the foreign national in a managerial or executive capacity.

  • The employer must have been doing business in the U.S. for at least 1 year, as a legal entity with a qualifying relationship to the entity that employed the foreign national abroad in a managerial or executive capacity.

  • The foreign national must have been employed outside the U.S. for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if they are already working for the U.S. petitioning employer.”

EB-2 National Interest Waiver (NIW)

The EB-2 NIW is a specific pathway within the second preference green card category. Unlike the standard EB-2 process, the NIW allows the foreign national to self-petition, meaning they don’t need a U.S. employer to sponsor them or a labor certification the Department of Labor. So, the foreign national is able to “waive” the PERM process because they are able to show that their work is in the national interest. The following provides the criteria for the EB-2-NIW according to USCIS policy manual  Volume 6, Part F, Chapter 5, Advanced Degree or Exceptional Ability:

  • “The foreign national must provide evidence of an advance degree meaning, a U.S. degree above a bachelor’s degree (or foreign equivalent degree) or evidence of the bachelor’s degree followed by 5 years of progressive experience in the specialty; or

  • The foreign national must provide evidence of eligibility as a person of exceptional ability based on being an advanced degree professional, provide evidence to satisfy at least 3 of 6 criteria as well as evidence that in the totality, demonstrates that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

  • Eligibility of the National Interest Waiver:

    • “Prong 1: Evidence that the foreign national’s proposed endeavor has substantial merit and national importance

    • Prong 2: Evidence that the foreign national is well-positioned to advance their proposed endeavor

    • Prong 3: On balance, it would be beneficial to the U.S. to waive the job offer and thus the permanent labor certification requirements.”

EB-2 Professional holding an advanced degree or its equivalent, or a person who has exceptional ability.

The foreign national qualifies for the employment-based, second preference visa if they are a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability. The following provides the criteria for the EB-2 according to USCIS policy manual  Volume 6, Part F, Chapter 5, Advanced Degree or Exceptional Ability:

  • “The foreign national must provide evidence of an advance degree meaning, a U.S. degree above a bachelor’s degree (or foreign equivalent degree) or evidence of the bachelor’s degree followed by 5 years of progressive experience in the specialty; or

  • The foreign national must provide evidence of eligibility as a person of exceptional ability based on being an advanced degree professional, provide evidence to satisfy at least 3 of 6 criteria as well as evidence that in the totality, demonstrates that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

  • Additionally, the foreign national must meet the job requirements specified on the labor certification as of the priority date.”

EB-3 Skilled worker, professional, or other worker.

U.S. employers to sponsor foreign workers for permanent residency in the U.S., filling job positions that cannot be readily filled by U.S. workers. This visa category targets skilled workers, professionals, and other workers who meet specific job requirements. The following provides the criteria for the EB-3 according to USCIS policy manual Volume 6, Part F, Chapter 7, Skilled Worker, Professional, or Other Worker:

  • “Skilled Workers

    • The labor certification (or application for Schedule A designation) must require at least 2 years of experience or training.

    • You must demonstrate that you have met any job requirements specified on the labor certification (or application for Schedule A designation). This evidence may include official academic records and letters from current or former employers.

    • Relevant post-secondary education may be considered as training.

  • Professionals

    • The labor certification (or application for Schedule A designation) must require at least a U.S. bachelor’s or foreign equivalent degree, and a bachelor’s degree is the normal requirement for entry into the occupation.

    • You must demonstrate that you have met any job requirements specified on the labor certification (or application for Schedule A designation). This evidence may include official academic records and letters from current or former employers.

    • Education and experience may not be substituted for a bachelor’s degree.

  • Unskilled Workers (Other Workers)

    • The labor certification must require less than 2 years training or experience.

    • You must demonstrate that you have met any requirements specified on the labor certification.”

EB-4 Special Immigrant

Foreign nationals who are considered “special immigrants” are qualified under an EB-4 preference based on their unique circumstances and contributions. The following provides the criteria for the EB-4 according to USCIS policy manual Volume 7, Part F, Special Immigrant-Based (EB-4) Adjustment:

  • “Religious workers

  • Special Immigrant Juveniles

  • Certain broadcasters

  • Certain retired officers or employees of a G-4 international organization or NATO-6 civilian employees and their family members

  • Certain employees of the U.S. government who are abroad and their family members

  • Members of the U.S. armed forces

  • Panama Canal company or Canal Zone government employees

  • Certain physicians licensed and practicing medicine in a U.S. state as of Jan. 9, 1978; and

  • Aliens who have supplied information concerning a criminal organization or enterprise or a terrorist organization, enterprise, or operation (S nonimmigrants).”

EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor Visa Program's primary purpose is to stimulate the U.S. economy through job creation and capital investment by foreign investors. It allows eligible investors and their families to obtain a green card by investing in a commercial enterprise that creates or preserves jobs for U.S. workers. The following provides the criteria for the EB-5 according to USCIS policy manual About the EB-5 Visa Classification:

  • “Make the necessary investment in a commercial enterprise in the United States; and

  • Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.”