Employment-Based Petitions

Introduction

Each year, the United States allocates approximately 140,000 employment-based immigrant visas for foreign workers whose skills are essential to filling vacancies in the country’s workforce. These visas allow beneficiaries and their families to obtain legal permanent residence (green cards).

In most cases, a permanent, full-time offer of employment from a U.S. employer, who acts as a sponsor, is required. However, there are exceptions for individuals with extraordinary ability or when their admission is deemed to be in the national interest.

The process may include Permanent Labor Certification (PERM), through which the employer must demonstrate that there are no qualified U.S. workers available for the offered position.

Employment-Based Preference Categories

1. First Preference (EB-1): Priority Workers

This category is intended for individuals with exceptional abilities and comprises three subcategories:

People with extraordinary abilities in science, arts, education, business, or sports, recognized nationally or internationally.

Distinguished professors and researchers with at least three years of experience and international recognition.

Multinational executives or managers who have worked outside the U.S. for at least one year in the three years prior to applying and are seeking to continue in a similar position in the U.S.

Note: Individuals with extraordinary ability may self-sponsor and do not require a job offer. Furthermore, this category does not require labor certification (PERM).

2. Second Preference (EB-2): Professionals with Advanced Degrees or Exceptional Ability

Includes:

Professionals with advanced degrees (master’s or higher) or their equivalent (bachelor’s degree plus five years of progressive experience in the field).

People with exceptional ability in science, arts, or business.

Generally, a permanent job offer and approved labor certification are required. However, a National Interest Waiver (NIW) may be requested if it is demonstrated that the applicant’s work will significantly benefit the U.S., thus eliminating the need for a job offer and labor certification.

3. Third Preference (EB-3): Skilled Workers, Professionals, and Other Workers

This category covers:

Skilled workers: People with at least two years of experience or training in a specific occupation.

Professionals: Individuals with a U.S. bachelor’s degree or its foreign equivalent.

Other workers: Those who perform unskilled jobs that require less than two years of training or experience.

A permanent job offer and approved labor certification are required.

General Application Process

1. Labor Certification (PERM):

The employer must obtain certification from the U.S. Department of Labor demonstrating that there are no U.S. workers available for the position. (DOL)

2. Immigrant Petition (Form I-140):

The employer files this petition with USCIS to classify the worker as an employment-based immigrant.

3. Application for Permanent Residence:

Adjustment of Status (Form I-485): If the applicant is already in the U.S.

Consular Processing: If the applicant is outside the U.S., through an embassy or consulate.

Note: In some categories, it is possible to file Forms I-140 and I-485 simultaneously if visas are available.

Frequently Asked Questions (FAQs)

What is labor certification (PERM)?

It is a process by which the Department of Labor certifies that there are no qualified U.S. workers available for the position offered to the foreigner.

Can I self-sponsor for an employment-based Green Card?

Yes, in certain categories such as EB-1 (extraordinary abilities) and EB-2 with National Interest Waiver (NIW), it is possible to self-sponsor.

How long does the process take?

The time varies depending on the category and the applicant’s country of origin. It can range from several months to several years.

Can I include my family on the application?

Yes, spouses and unmarried children under the age of 21 can be included as derivative beneficiaries.

What happens if I change employers during the process?

Depending on the stage of the process and the category, changing employers may affect your application. It’s advisable to consult with an immigration attorney.

Statement: The concepts explained should not be taken as legal advice, it is a compendium of public information from the INA.

In all cases, consultation with an attorney is recommended to determine your eligibility. At Immigration Document Preparers, we limit ourselves to submitting forms to USCIS correctly based on the information that the client provides us. We do not give advice or legal advice.