Employment Based Green Cards
An application for an employment based Green Card is made to U.S. Citizenship and Immigration Services (USCIS) on a Form I-140. There are three main categories of employment based Green Cards, summarized below. Most employment based applications require labor certification.
- The EB-1 category applies to three types of workers: (1) people of extraordinary ability in the sciences, arts, education, business or athletics; (2) outstanding professors or researchers; and (3) multinational executives and managers who have been transferred to the United States by a related company. None of these sub-categories require labor certification. The first sub-category does not require a job offer; the person can petition for himself.
- The EB-2 category consists of two groups: (1) people of exceptional ability in the sciences, arts or business; and (2) members of the professions holding advanced degrees. Generally, EB-2 cases need both labor certification and a job offer. However, labor certification and a job offer may be waived if the employment is in the national interest according to certain strict standards developed by the former INS and the Administrative Appeals Office.
- The EB-3 category consists of three groups: (1) professionals, holding a bachelor’s degree or higher; (2) skilled workers, capable of performing work requiring at least two years of educational, experience or training; and (3) unskilled workers. All EB-3 cases, other than Schedule A cases (see below), need labor certification and a job offer.
“Labor certification” means a determination that there are no U.S. citizens or permanent residents available to do the job offered. The labor certification process requires that the sponsoring employer advertise the job to determine if there are U.S. workers who are qualified, willing, and available. If labor certification is required, an application must be made to the Department of Labor and approved before the I-140 can be filed with the USCIS. The PERM regulation, which became effective March 28, 2005, revolutionized labor certification. After that date all labor certifications are filed directly with the Department of Labor on an online form. All recruitment must be completed before the application is filed. Recruitment must include two newspaper ads published on a Sunday, a 30 day job order with the state job service, and three additional forms of recruitment for professional occupations.
Registered nurses and physical therapists are pre-certified – they don’t need an individual labor certification. These are known as “Schedule A” occupations. Aliens of exceptional ability in the sciences, arts, and performing arts are also included on Schedule A.
There are limited numbers of visas in each of these categories. In addition, no country can contribute more than 7% of the total world-wide immigration to the United States. As a result of this quota system, people with approved I-140s are often not allowed to immigrate to the United States or adjust status until their “priority date” becomes current. Your priority date is the date you began the Green Card process, either by filing a labor certification or an I-140, if no labor certification is needed. Every month the State Department issues a visa bulletin. This visa bulletin announces what priority dates are current.
Once you have an approved I-140 and your priority date is current, you can proceed to adjust status, if you are currently in the United States, or you can go to a U.S. consulate abroad in your home country and obtain an immigrant visa.
