For many foreign workers, getting a job in the United States is only the beginning. If the goal is to live and work in the country permanently, an employment-based immigrant visa in New York may be one path toward lawful permanent residence.
The process can look complicated at first. Different employment-based categories, employer requirements, forms, waiting periods, and, in some cases, a labor certification process apply.
The right steps depend heavily on your job, qualifications, employer, and the specific immigrant category involved.
So, where do you actually start?
Understand the Employment-Based Visa Categories
The first step is figuring out which employment-based immigrant category may apply to your situation.
The main categories include EB-1 for certain priority workers, EB-2 for professionals with advanced degrees or people with exceptional ability, and EB-3 for skilled workers, professionals, and certain other workers.
There are also EB-4 categories for certain special immigrants and EB-5 for qualifying immigrant investors.
You cannot simply choose a category because it sounds appropriate. The eligibility requirements are specific.
For instance some EB1 applicants might qualify through extraordinary ability or certain multinational executive or manager roles. EB2 can involve an advanced degree or exceptional ability and some people may get a National Interest Waiver. EB3 covers a few different kinds of employment situations.
That distinction matters from the beginning.
Do You Need an Employer Sponsor for an Employment Based Immigrant Visa?
For many employment-based green card cases, the U.S. employer plays a central role.
In most categories that require a permanent job offer, the employer files Form I-140, Immigrant Petition for Alien Workers. Some exceptions exist. For instance, certain EB-1 applicants and people applying under an EB-2 National Interest Waiver may be able to file their own petitions.
Your employer may also need to complete a labor certification process before filing the I-140.
This is commonly associated with EB-2 and EB-3 cases that require labor certification. An H-1B visa attorney can also help employers and foreign workers understand how H-1B status may relate to other employment-based immigration options and requirements.
The purpose of labor certification is to show that not enough US workers are able, willing, qualified and available for the job and that hiring the foreign worker will not hurt the wages or working conditions of other US workers in similar roles.
Not every employment-based case follows this route. That is worth remembering.
Complete PERM Labor Certification for Employment Based Immigration
When labor certification is required, the employer generally begins the process with the U.S. Department of Labor.
The process involves requirements related to the offered position and recruitment. The employer then submits the applicable permanent employment certification application, generally using Form ETA-9089.
If USCIS approves the labor certification, the employer can submit it with the Form I-140 petition.
This stage can take time, and the employer has responsibilities throughout the process. It is not simply a form the employee completes on their own.
For cases that do not require labor certification, the process may move more directly to the immigrant petition stage.
File Form I-140 for an Employment Based Immigrant Visa
After the necessary preliminary requirements are handled, the next major step is the Form I-140 petition.
The petition is filed with USCIS and establishes eligibility for the applicable employment-based immigrant classification. Depending on the category, the U.S. employer may file it, or the worker may be permitted to self-petition.
Supporting evidence is important here.
That can include documentation showing your education, work experience, qualifications, employment offer, or other evidence required for your particular category. If labor certification is required, you must also submit the approved certification according to USCIS requirements.
An approved I-140 does not automatically give you permanent resident status. There is another stage to complete.
How Does the Employment Based Immigration Priority Date Work?
This is one part applicants often find confusing.
When you file an employment-based petition, the filing date generally becomes your priority date. That date determines the applicant’s place in line when visa numbers are limited annually.
The U.S. Department of State publishes a monthly Visa Bulletin showing when immigrant visa numbers are available in different employment-based categories.
Some categories are current. Others have cutoff dates. The situation can also differ depending on the applicant’s country of chargeability.
So even after an I-140 is approved, you may need to wait until your priority date becomes available before taking the next step.
What to Choose Between Adjustment of Status and Consular Processing?
The final stage depends in part on whether you are eligible to apply for adjustment of status in the United States or need to complete immigrant visa processing through a U.S. embassy or consulate abroad.
If you are eligible to adjust status in the United States, you may be able to file Form I-485 with USCIS. If you are outside the United States, you generally go through immigrant visa processing with the Department of State and attend an interview at a U.S. embassy or consulate.
These processes differ, although both can ultimately lead to lawful permanent residence.
If you are applying through consular processing, you must submit the required forms and civil documents, pay applicable fees, complete the required medical examination, and attend the immigrant visa interview.
How to Complete the Final Review of Your Application?
At this stage, the government reviews whether you meet the requirements for permanent residence and whether you are admissible to the United States.
The details can vary considerably from one case to another. Background checks, medical requirements, documentation, and other admissibility issues may all come into play.
This is also why keeping your records organized matters. Employment history, educational documents, passports, civil records, and immigration paperwork may all become important during the process.
And don’t assume that an approved petition means the case is finished.
The I-140 establishes the underlying employment-based eligibility, but it does not by itself grant permanent resident status.
What About the Waiting Period for an Employment-based Immigrant Visa?
No single timeline applies to every employment-based immigrant visa.
Visa availability changes over time, and some categories face significant backlogs.
Each month the Department of State publishes the Visa Bulletin. It usually shows different final action dates for EB1 EB2 and EB3 applicants based on their country of chargeability. These dates can move around from one month to the next.
That means two people with similar jobs might not go through the process at the same speed.
Keeping an eye on the current Visa Bulletin helps you stay on top of your case.
Get Guidance Before You File for H-1B Visa
Employment based immigration involves several stages and an early mistake can create complications later. Your eligibility may depend on your job qualifications, employer immigration history and the specific employment based category involved.
If you are trying to understand your employment based green card options or need help navigating the process Law Offices of Keshab Raj Seadie P.C. provides immigration services focused on employment based green card matters.
We can help you better understand the available employment based pathways and what may be involved in pursuing permanent residence through employment.
Before taking action, review your individual circumstances carefully and consider speaking with our immigration attorney, including our H-1B visa attorney in New York if your situation involves H-1B status or related employment-based immigration concerns.
Our attorney can assess your case and explain the requirements that may apply.
Frequently Asked Questions
1. What is an Employment Based Immigrant Visa?
An Employment Based Immigrant Visa allows eligible foreign nationals to immigrate to the U.S. through employment-based categories such as EB-1, EB-2, and EB-3.
2. How do I apply for an Employment Based Immigrant Visa?
Depending on the category, the process may involve PERM labor certification, Form I-140, a priority date, and adjustment of status or consular processing.
3. How long does an Employment Based Immigrant Visa take?
Processing times vary based on the visa category, USCIS processing, visa availability, and the applicant’s country of chargeability.
4. Does an Employment Based Immigrant Visa require sponsorship?
Some categories require employer sponsorship, while certain applicants may qualify to self-petition.
5. Can an Employment Based Immigrant Visa lead to a green card?
Yes. An Employment Based Immigrant Visa can lead to lawful permanent residence if the applicant meets all applicable requirements.
