Permanent Immigration via Employment

Employment-Based Green Cards

Foreign nationals who are skilled or educated—and who have job offers—have the possibility of immigrating to the United States. Employment-based immigration is limited by statute to 140,000 persons per year. In most employment-based cases the process is three-fold: (a) the employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL); (b) the employer applies for immigrant visa classification under the employment-based second or third preference; and, (c) the foreign national applies for lawful permanent residency or the “green card” through adjustment of status in the United States or consular processing overseas.

An outline of Employment-Based permanent resident visas follows:

  • Employment-Based 1st Preference (EB1): Priority workers including persons of extraordinary ability i.e. persons who have won the Nobel Prize or have similar achievements; outstanding professors and researchers; multi-national executives and managers.
  • Employment-Based 2nd Preference (EB2): Professionals holding advanced degrees*, or aliens of exceptional ability.
  • Employment-Based 3rd Preference (EB3): Professionals, skilled and other workers.*
  • Employment-Based 4th Preference (EB4): Religious and other special immigrants.
  • Employment-Based 5th Preference (EB5): Employment Creation Visa for 1) $1 million investors whose investment creates employment for 10 or more qualified persons, and 2) $500,000 investors who invest in federally approved regional centers.

In the above categories that are marked with an “ * ” the employer begins the process by obtaining “labor certification” from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired.

To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. Unless the position involves teaching at a post-secondary institution, the question is not whether the foreign national is the best qualified for the position, but whether or not there is a U.S. worker with the minimum skills required for the position. The employer also should have offered the position at the normal or prevailing wage.

Both the employment-based second and third preferences are backlogged for those born in China and India. The third preference is more backlogged than the second preference. It is, therefore, important—whenever possible—to classify the foreign worker from China or India in the second preference rather than the remaining third preference.