How To Obtain A Green Card Through Employment-Based Immigration

Obtaining a green card through employment-based immigration is one of the primary methods for legally moving to the United States. This process allows foreign nationals to live and work in the U.S. permanently. The path to obtaining an employment-based green card involves several steps, categories, and regulations that applicants must navigate. This article provides a comprehensive guide on how to obtain a green card through employment-based immigration, including an overview of the different categories, the application process, and the relevant laws and regulations.

Categories of Employment-Based Green Cards

Employment-based green cards are divided into five preference categories, each with specific criteria and requirements. Understanding these categories is crucial for determining eligibility and navigating the application process.

EB-1: Priority Workers

The EB-1 category is for priority workers who demonstrate exceptional ability or hold certain distinguished positions. It is divided into three subcategories:

1. Persons with Extraordinary Abilities:
   • These individuals have demonstrated extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.
   • Evidence may include major awards or prizes, membership in associations requiring outstanding achievements, published material about the individual, and more.
2. Outstanding Professors and Researchers:
   • This subcategory is for those recognized internationally for their outstanding achievements in a specific academic field.
   • Applicants must have at least three years of experience in teaching or research and must be seeking to enter the U.S. for a tenure-track position or a comparable research position.
3. Multinational Executives and Managers:
   • This subcategory is for executives and managers who have been employed for at least one of the preceding three years by a firm or corporation and who are seeking to enter the U.S. to continue service to that firm or organization.

EB-2: Professionals with Advanced Degrees or Exceptional Ability

The EB-2 category includes professionals holding advanced degrees and individuals with exceptional ability in their field. It is divided into three subcategories:

1. Professionals Holding Advanced Degrees:
   • Applicants must possess an advanced degree (beyond a bachelor’s degree) or its equivalent in their field.
   • Alternatively, they can have a U.S. bachelor’s degree or equivalent plus at least five years of progressive post-baccalaureate experience in the specialty.
2. Individuals with Exceptional Ability:
   • These individuals have exceptional ability in the sciences, arts, or business, significantly above that ordinarily encountered in their field.
   • Evidence of exceptional ability may include academic records, letters from current or former employers, licenses or certifications, and more.
3. National Interest Waiver (NIW):
   • Applicants seeking a National Interest Waiver are requesting that the labor certification requirement be waived because their work is in the national interest of the United States.
   • This is typically granted to those who have exceptional ability and whose employment would greatly benefit the nation.

EB-3: Skilled Workers, Professionals, and Other Workers

The EB-3 category is for skilled workers, professionals, and other workers. It is divided into three subcategories:

1. Skilled Workers:
   • Applicants must have at least two years of job experience or training.
   • The job must not be temporary or seasonal.
2. Professionals:
   • Applicants must hold a U.S. bachelor’s degree or the foreign equivalent.
   • They must be performing work for which qualified workers are not available in the United States.
3. Other Workers:
   • This subcategory is for those performing unskilled labor requiring less than two years of training or experience.
   • The job must not be temporary or seasonal.

EB-4: Special Immigrants

The EB-4 category is for special immigrants, including various groups such as religious workers, special immigrant juveniles, and others. Some of the subcategories include:

1. Religious Workers:
   • Individuals working in a religious vocation or occupation, including ministers and other workers in religious occupations.
2. Special Immigrant Juveniles:
   • Juveniles who need the protection of a juvenile court due to abuse, neglect, or abandonment by a parent.
3. Certain Broadcasters:
   • Employees of international broadcasting services who seek to enter the U.S. to work for a U.S. broadcasting organization.
4. Employees of U.S. Foreign Service Posts:
   • Employees of the U.S. government abroad who have served faithfully for at least 15 years.

EB-5: Immigrant Investors

The EB-5 category is for immigrant investors who make substantial investments in U.S. businesses. Key requirements include:

1. Investment Requirements:
   • Applicants must invest at least $1.8 million in a new commercial enterprise.
   • In targeted employment areas (TEAs), the required investment amount is reduced to $900,000.
2. Job Creation Requirements:
   • The investment must create or preserve at least 10 full-time jobs for U.S. workers.
   • These jobs must be created within two years of the investor’s admission to the United States as a Conditional Permanent Resident.

Process of Obtaining an Employment-Based Green Card

The process of obtaining an employment-based green card involves several steps, each with specific requirements and procedures. Below is an overview of the key steps in the process:

1. Labor Certification (PERM)

For most EB-2 and EB-3 applicants, the first step is to obtain a labor certification from the Department of Labor (DOL). The labor certification process, known as the Program Electronic Review Management (PERM) process, ensures that:

• There are no qualified U.S. workers available for the position.
• The employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers.

The PERM process involves several steps, including:

1. Job Advertisement:
   • The employer must advertise the job to ensure no qualified U.S. workers are available.
   • Advertisements must be placed in specified locations, including newspapers, job boards, and other recruitment channels.
2. Filing the ETA Form 9089:
   • Once the recruitment process is complete, the employer files the ETA Form 9089 with the DOL.
   • This form includes details about the job, the recruitment process, and the qualifications of the foreign worker.
3. Approval of Labor Certification:
   • If the DOL approves the labor certification, the employer can proceed to the next step in the process.

2. Filing the Immigrant Petition

After obtaining the labor certification (if required), the employer files Form I-140, Immigrant Petition for Alien Worker, with the U.S. Citizenship and Immigration Services (USCIS). The Form I-140 includes:

• Information about the employer and the foreign worker.
• Evidence of the foreign worker’s qualifications.
• Proof of the employer’s ability to pay the offered wage.

3. Priority Date

The priority date is established when the labor certification is filed (for categories requiring PERM) or when the I-140 is filed (for categories not requiring PERM). The priority date determines the applicant’s place in line for a green card. The availability of immigrant visas is governed by the Visa Bulletin, which is published monthly by the Department of State. The Visa Bulletin provides information on the availability of visas and the priority dates for different categories.

4. Adjustment of Status or Consular Processing

The final step in obtaining an employment-based green card is either adjusting status (if the applicant is already in the U.S.) or undergoing consular processing (if the applicant is outside the U.S.).

1. Adjustment of Status:
   • If the applicant is already in the U.S., they can file Form I-485, Application to Register Permanent Residence or Adjust Status.
   • This process allows the applicant to become a permanent resident without leaving the United States.
2. Consular Processing:
   • If the applicant is outside the U.S., they must go through consular processing at a U.S. embassy or consulate.
   • This involves attending an interview and undergoing medical examinations and background checks.

Relevant Laws and Regulations

Several key laws and regulations govern employment-based immigration. Understanding these laws is essential for navigating the green card application process.

Immigration and Nationality Act (INA)

The Immigration and Nationality Act (INA) is the primary body of law governing immigration to the United States. The INA establishes the various categories of immigrant visas, including employment-based visas, and outlines the requirements and procedures for obtaining them.

8 CFR (Code of Federal Regulations)

Title 8 of the Code of Federal Regulations (CFR) contains the regulations for immigration, including employment-based visas. The CFR provides detailed rules and guidelines for the application process, including labor certification, filing of petitions, and adjustment of status.

American Competitiveness in the Twenty-First Century Act (AC21)

The American Competitiveness in the Twenty-First Century Act (AC21) provides greater flexibility for H-1B workers and adjustment of status applicants. Key provisions include:

• Allowing H-1B workers to change employers while their green card application is pending.
• Extending H-1B status beyond the usual six-year limit for those with pending green card applications.

Homeland Security Act of 2002

The Homeland Security Act of 2002 restructured immigration functions within the federal government, creating the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS). This restructuring aimed to improve the efficiency and effectiveness of immigration services.

Current Data and Trends

Employment-based immigration trends can fluctuate based on various factors, including changes in laws, economic conditions, and government policies. Staying informed about current data and trends is important for understanding the green card application landscape.

Visa Bulletin

The Visa Bulletin, published monthly by the Department of State, provides information on the availability of immigrant visas and the priority dates for different categories. The Bulletin includes:

• Final Action Dates: The dates when immigrant visas can be issued based on the priority date.
• Dates for Filing: The dates when applicants can file their immigrant visa applications or adjustment of status applications.

Demand for Employment-Based Green Cards

As of the latest updates, there is high demand for employment-based green cards, particularly in the EB-1 and EB-2 categories. This high demand can lead to longer waiting times for visa availability. Applicants should regularly check the Visa Bulletin to stay informed about the status of their priority dates.

Policy Changes

Changes in government policies can impact employment-based immigration. Recent policy changes have included adjustments to visa application procedures, changes in eligibility criteria, and shifts in priority for certain categories. Staying informed about these changes is crucial for applicants and employers.

Conclusion

Navigating the process of obtaining a green card through employment-based immigration requires a thorough understanding of the various categories, procedures, and relevant laws. Staying informed about the latest updates and working with experienced immigration professionals can greatly enhance the chances of a successful application.

For more detailed guidance, it is advisable to consult the official USCIS website and the Visa Bulletin, or seek assistance from an immigration attorney.