Employment-Based Immigration
One way to qualify for a green card is through a permanent job or offer of employment in the US. There are 5 different preference categories of employment-based immigrant visas available. The classifications are defined by both the type of job and the prospective immigrant's education and experience. Approximately 140,000 employment-based visas are available each fiscal year.
Employment-Based Immigrant Visa Categories
EB-1: Priority workers including
persons of extraordinary ability, outstanding professors and researchers, and executives and managers of multinational organizations
EB-2: Members of professions who hold advanced degrees or persons of exceptional ability
EB-3: Professionals, skilled and other workers
EB-4: Special immigrants, including religious workers
EB-5: Persons who invest significant funds in the US and create at least 10 jobs for US workers
Application Procedure
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Labor Certification: The first step for many employment-based immigration cases, including those in the EB-2 and EB-3 categories, is for employers to file Labor Certifications with the Department of Labor. A Labor Certification must be approved before an employer may petition for an alien worker. The purpose of a Labor Certification is for an employer who wants to bring in a foreign worker to test the labor market to ensure that at any given point there are no willing and able US workers or Permanent Residents available for an open position. To learn more about submitting Labor Certifications through the DOL's PERM system,
visit our PERM section.
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I-140 Immigrant Petition for Alien Worker: After a Labor Certification is approved, an employer has 180 days to file an I-140, Immigrant Petition for Alien Worker, with the USCIS on behalf of his prospective foreign employee for the appropriate EB category. EB-1 persons of extraordinary ability and those seeking a National Interest Waiver may self-petition. Please find below
Frequently Asked Questions about Form I-140.
- I-485 Application to Register Permanent Residence or Adjust Status: Once the I-140 Immigrant Petition for Alien Worker is approved and a visa number is available, the foreign worker can file the Form I-485, Application to Register Permanent Residence or Adjust Status, to become a permanent resident.
EB-1 Preference Classification
The first Employment-Based preference category is for persons of extraordinary ability, outstanding researchers and professors, and managers and executives of multinational organizations. Please visit Extraordinary Ability Individuals for more information about how to determine if you qualify.
To qualify as an Outstanding Professor or Researcher, an individual must be recognized internationally as outstanding in a specific academic field, possess at least 3 years experience in teaching or research in the field, seek to enter the US for a tenured, tenure-track teaching or research position, provide evidence to support at least
2 of the following criteria; and the person must have a job offer from a US employer.
Criteria which demonstrate that a person is an Outstanding Professor or Researcher:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require 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
To qualify for EB-1 preference as an Executive or Manager you must meet the following criteria:
- The petitioning party must be a US employer
- Your employer must have been doing business for at least 1 year as an affiliate, subsidiary or as the same corporation or other legal entity that employed you abroad
- You must have been employed by the foreign company/entity outside the United States for at least 1 of the 3 years preceding the time of your application for classification and admission to the US
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You must be seeking to enter the United States to continue service for that firm or organization
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Your employment outside the United States must have been in a managerial or executive capacity and with the same employer, affiliate, or subsidiary of the employer
EB-2 Preference Classification
The second preference category is available to members of professions who hold advanced degrees and to foreign nationals with exceptional ability. Those seeking a National Interest Waiver also fall under this classification.
To qualify as an Individual of Exceptional Ability you must meet at least 3 of the following criteria:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession, or a certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Note: Other comparable evidence of eligibility is also acceptable.
To qualify as an Advanced Degree-holder you must provide the appropriate documentation. The job must require an Advanced Degree, and you must hold the relevant US degree or its foreign equivalent (or a US or foreign Baccalaureate Degree and at least 5 years post-baccalaureate progressive experience in the specialty field).
Family
The spouse and children under the age of 18 of EB-2 holders are considered derivative beneficiaries. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD) in order to work in the US.
EB-3 Preference Classification
The third employment-based immigrant visa category applies to skilled workers, professionals, and some other unskilled workers. For all EB-3 petitions, a Labor Certification and a permanent, full-time job offer are needed in order for the prospective foreign worker to qualify. The Labor Certification ensures that there were no available, qualified US workers for the job.
Who Qualifies as a Skilled Worker?
A skilled worker is someone who is capable of performing skilled labor (which requires at least 2 years of job experience or training) which is not of a temporary or seasonal nature.
Who Qualifies as a Professional?
You must possess a US Baccalaureate Degree (or the foreign equivalent) and show that such a degree is the normal entry requirement into the specific occupation. In this case, other education or experience may not be substituted for the conferral of a Baccalaureate Degree.
Who Qualifies as an Other/Unskilled Worker?
You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years of training or experience) that is not of a temporary or seasonal nature.
Family
The spouse and children under the age of 18 of EB-3 holders are considered derivative beneficiaries. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD) to work in the US.
EB-4 Preference Classification
The fourth preference category is designed for members of specific special occupations. Each year 7.1 percent of immigrant visas are allotted to this category. The following professions are eligible:
- 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
- Spouses and Children of Deceased NATO-6 employees
Application Procedures
The filing procedures for EB-4 workers are different from those of other employment-based applicants. Your employer should file a Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant
on your behalf, though there are certain situations in which you may self-petition.
Family
Your spouse and your unmarried children under the age of 21 may be admitted to the United States as dependents in derivative status.
EB-5 Preference Classification
The fifth preference category, created by Congress in 1990, is designed for foreigners who wish to move to the US to invest in a new commercial enterprise that will benefit the US economy and create at least 10 full-time jobs for US workers. You may qualify by either creating a new commercial business enterprise or investing in a troubled business.
To qualify as a New Commercial Business Enterprise you must meet the following criteria:
- You must invest, or be in the process of investing, at least $1,000,000, unless your investment is in a targeted employment area when the minimum is only $500,000. A Targeted Employment Area is defined by law as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average."
- It must benefit the US economy by providing goods or services to US markets.
- The investment must create full-time employment for at least 10 US workers (this includes US citizens, Lawful Permanent Residents and other individuals lawfully authorized to work in the US).
- You must be involved in the day-to-day management of the new business or directly manage it through creating business policy.
To qualify as a Troubled Business you must meet the following criteria:
- You must invest in a business that has existed for at least 2 years.
- You must invest in a business that has incurred a net loss for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
- The loss for that period must be at least equal to 20 percent of the business's net worth before the loss.
- You must maintain the number of jobs at no less than the pre-investment level for at least 2 years.
- You must invest, or be in the process of investing, at least $1,000,000, unless your investment is in a targeted employment area when the minimum is only $500,000. A Targeted Employment Area is defined by law as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average."
- You must be involved in the day-to-day management of the new business or directly manage it through creating business policy.
Application Process
There is a 3-step self-petitioning process for gaining permanent residence through the EB-5 category.
- You must file your I-526 Petition for an Alien Entrepreneur, and it must be approved by the USCIS.
- After it is approved, you may either file a Form I-485 Adjustment of Status petition if you are in the US or apply for consular processing at a US Embassy or Consulate abroad. You (and your dependent family members) will be granted 2-year conditional permanent residence.
- At least 90 days prior to the expiration of that 2-year period, you must file a Form I-829, Petition by an Entrepreneur to Remove Conditions, in order to receive a green card with no conditions attached to it.
What Documentation do I need for the I-526 Petition?
New Commercial Enterprise:
- Evidence that you have established a "for profit" new commercial enterprise.
- Evidence, if applicable, that your business has been established in a targeted employment area.
- Evidence that you have invested or are in the process of investing the required amount ($1,000,000 or $500,000).
- Evidence that the investment funds were obtained through lawful means.
- Evidence that the new commercial enterprise will create at least 10 full-time positions - not including yourself, your spouse, sons or daughters, or any temporary/nonimmigrant workers. You will need to submit a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for at least ten (10) employees will result, including approximate dates within the next two-years, and when each employee will be hired.
- Evidence that you will be actively involved in the management of the new commercial enterprise (day-to-day or through policy).
Troubled Business:
- Evidence that you have established a "for profit" new commercial enterprise.
- Evidence, if applicable, that your business has been established in a targeted employment area.
- Evidence that you have invested, or are in the process of investing, the required amount ($1,000,000 or $500,000).
- Evidence that the investment funds were obtained through lawful means.
- Evidence that you will be actively involved in the management of the new commercial enterprise, (day-to-day or through policy).
- Evidence that the number of existing jobs is being, or will be maintained, at no less than the pre-investment level for a period of at least two years. At least 10 jobs must be maintained.
Frequently Asked Questions about Form I-140
1.
What is an I-140 Petition?
2.
What materials should accompany an I-140 Petition?
3.
Can you file an I-140 and I-485 concurrently?
4.
What happens after I submit my I-140 Petition?
5.
Am I eligible for I-140 Premium Processing?
6.
What if my I-140 is rejected?
7.
What about my dependents?
1. What is an I-140 Petition?
An I-140 petition, or Immigrant Petition for Alien Worker, is filed to petition for a foreign worker to become a permanent resident in the United States. Generally it is the US employer who files the petition, unless you are an alien of extraordinary ability or you are applying for a
national interest waiver - then you may self-petition.
2. What materials should accompany an I-140 Petition?
- Completed Form I-140
- A copy of your approved Labor Certification
- Filing fee of $580 by check or money order made payable to the Department of Homeland Security
- Proof of the Petitioner's financial ability to pay the beneficiary's wages
- Experience letters from the Beneficiary's previous employers
- Other documents such as degree certificates, education evaluations, and qualification letters may be required
3. Can you file an I-140 and I-485 concurrently?
If your priority date is current when filing your I-140, you are eligible to file your I-485 (Adjustment of Status) Petition concurrently. This includes I-485 Petitions for spouses and applicable children. To see if your priority date is current, please check the most recent Visa Bulletin.
4. What happens after I submit my I-140 Petition?
After USCIS receives your I-140 Petition, a Receipt Notice is issued with a Receipt Number unique to your case. The processing time taken by USCIS to approve or reject the I-140 depends on many factors, including whether a Request for Evidence is issued, duplicate Requests for Evidence are issued, or a Notice of Intent to Deny is issued. In addition, processing times can vary by Service Center. If your case is approved, then an Approval Notice will be issued. To check processing times of different Service Centers, please visit US Citizenship and Immigration Services (USCIS).
Note: Approval of an I-140 does not confer any status or authorized period of stay permission. Your status will remain the same as prior to approval of your I-140 petition.
5. Am I eligible for I-140 Premium Processing?
USCIS is currently allowing I-140 premium processing for all preference categories except EB-1 Multinational Executives and Managers and EB-2 National Interest Waiver petitions. For further details about the premium processing service, please visit the US Citizenship and Immigration Services (USCIS) website.
6. What if my I-140 is rejected?
Within thirty days of denial you may file an Appeal or a Motion to Reopen your I-140 Petition. At this point you should consult your attorney to determine the reasons for the unfavorable adjudication; your attorney can assist you in deciding whether or not to proceed with a Motion to Reopen or an Appeal.
Note: If your I-140 Petition is denied and you have a pending I-485(s), yours as well as your derivative beneficiary's I-485(s) will be denied immediately.
7. What about my dependents?
Spouses and children (under 21 at the time of I-140 approval and visa preference availability) are entitled to permanent residence through your employment-based application. They are eligible for adjustment of status or consular processing.