The U.S. immigration laws offer several avenues through which an individual can apply for and receive permanent residency (green card). Some of the ways a foreign national may receive a green card include through a family-based application, employment-based application, investment in the U.S. economy, or an asylum application.

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What is an employment-based green card?

An employment-based green card is a permanent residency status afforded to a foreign national under one of the five EB categories. Most visas under the EB category require a labor certification (LC) by the Department of Labor (DOL) and a job offer by an employer. However, there are exceptions to this rule if you fall under one of the subcategories under which the labor certification is waived or/and a job offer by an employer is not required.

How to apply for an employment-based green card?

Regardless of the employment-based category, applying for an employment-based green card involves either you or your employer filing a petition on your behalf. If the immigrant petition is based on one of the first three categories (EB1, EB2, or EB3), then either an employer or you must file Form I-140 on your behalf. Generally speaking, under the EB2 and EB3 category, an employer must conduct job recruitment, and receive a labor certification from the Department of Labor, before filing the petition. Labor certification and an employment offer requirement under EB2 may be waived for select positions if the government believes it to be in the national interest.

But if the immigrant petition is based on an EB4 category, the foreign national may self-petition on behalf of herself without an employer by filing Form I-360. Similarly, if the petition is based on an EB5 category, the applicant may self-petition on her behalf by filing Form I-526.

After USCIS approves the petition for an immigrant visa, the applicant (beneficiary) must either adjust the status by filing Form I-485 or go through consular processing by filing a DS-260.

Differences between the various employment-based green card categories (EB1, EB2, etc.)

There are five employment-based categories under which you may apply for a green card. Under some categories, an employer is required to extend a permanent job offer to an employee and file a petition on the employee’s behalf. While under other categories, an individual may complete the application process without a job offer or an employer.

EB1 – First Preference employment-based green card:

This type of immigrant visa is available to persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. A labor certification by the Department of Labor (DOL) is not required under this category. Similarly, a job offer is not required, if she is a person of extraordinary ability, so a foreign national may petition for herself by filing Form I-140. However, a job offer or employment is required to sponsor an outstanding professor/researcher or a multinational executive/manager.

EB2 – Second Preference employment-based green card:

This type of immigrant visa is available to a professional with an advanced degree and someone with exceptional ability. This category requires a labor certification (LC) from DOL and a job offer from the employer. However, USCIS may waive the LC and the job offer requirement, if they believe it’s in the national interest to do so.

EB3 – Third Preference employment-based green card:

This type of visa is available to professional, skilled, or other workers. A labor certification (LC) from DOL and a job offer from the employer are required for all EB3 visa categories. However, if the occupation is considered a Schedule A occupation under the DOL regulations, a labor certification may not be required.

EB4 – Fourth Preference employment-based green card:

This type of visa is available to a wide range of foreign nationals who are called special immigrants under immigration laws. The fourth preference visa category includes returning permanent residents, persons reacquiring U.S. citizenship, religious workers, employees of the U.S. government, and special immigrant juveniles, among others. Unlike the previous three categories which require Form I-140 to be filed, the petition in the EB4 is submitted by filing Form I-360. Special immigrants do not need an employer to sponsor them, so they may self-petition on their behalf.

EB5 – Fifth Preference employment-based green card:

This type of visa is available to a foreign national who through a capital contribution of the statutory amount in a new commercial enterprise in the U.S. creates at least 10 full-time jobs for U.S. citizens and authorized immigrant workers. At the time this article is written, you must invest $1,050,000 for standard investments or $800,000 for investment in a new enterprise to qualify for an EB5.

The investor cannot merely invest the capital to qualify under this category, she should be actively involved in the policy-making and the day-to-day management of the enterprise. An individual seeking to apply for the EB5 investor visa must file Form I-526 or I-526E.

The green card afforded under the EB5 investor category is called a conditional green card and is only valid for a total of 2 years. To convert the conditional status into a lawful permanent residency, you must file a petition to remove the condition during the 90 days before the expiration of the green card.

After the employment-based petition has been approved by the USCIS, the applicant must apply for a green card – by adjusting status from inside the U.S., or by applying for an immigrant visa at a U.S. Consular abroad.

What is the processing time for an employment-based green card?

Since there are five separate categories of employment-based green cards each with varying annual numerical limitations, and with further quotas for each country, it’s hard to precisely predict the processing time for an employment-based green card. In most cases, it takes anywhere from 1 to 6 years from the start of the process until the beneficiary receives a green card.

How to find an employer sponsor for an employment-based green card?

Unfortunately, there isn’t one reliable way to find an employer who is able and willing to sponsor an employment-based green card. The process of sponsoring a foreign worker takes time, effort, and significant expenses, because of which many employers are leery of investing their resources to petition for a foreign employee. Regardless, there are employers who are willing to go through the process and sponsor a foreign worker for positions that are hard to fill with U.S. workers, or for other reasons.

During your job search, it’s important to inquire with the employer or check the job details to see whether the potential employer is willing to sponsor your green card. If the employer has sponsored an employee in the past, they may be willing to go through the same process again. There are a few websites that allow you to search for employers based on their H1B or EB petitions in the past, which is usually a good indication of whether they are open to the process.

Some of the websites with the database of green card sponsoring employers include immihelp, myvisajobs, among others. The USCIS also offers a database where you can search for an H-1B employer, using the employer’s name, state, city, zip code, and fiscal year.

What are the eligibility requirements for an employment-based green card?

To be eligible for one of the employment-based green card categories, you must satisfy several criteria.

To qualify under the first preference EB1 category, you must be a priority worker who is a person of extraordinary ability, an outstanding professor or researcher, or a multinational manager or executive.

To qualify under the second preference EB2 category, you must be a professional with an advanced degree or someone of exceptional ability.

To qualify under the third preference EB3 category, you must either be a professional in the job area, a skilled worker, or an “other worker,” an individual who doesn’t qualify as a professional or a skilled worker.

To qualify under the fourth preference EB4 category, you must fall under the special immigrant category, which includes returning permanent residents, persons reacquiring U.S. citizenship, religious workers, employees of the U.S. government, and special immigrant juveniles, among others.

To qualify under the fifth preference EB5 you must invest a significant amount of funds, $1,050,000 for standard investments or $800,000 for investment in a new enterprise that creates at least 10 jobs for U.S. workers.

How to obtain a PERM Labor Certification for an employment-based green card?

Unless a labor certification is not required under an employment-based category (like under EB1), or that its waived under the national interest waiver (like under EB2), the employment position must be approved by the Department of Labor – through a process called PERM Labor Certification (LC).

The PERM process is usually a three-step process that starts when an employer makes a prevailing wage determination request with the Department of Labor, by completing an online form ETA-9141. The employer must pay the foreign employee a prevailing wage, which is determined by calculating an average wage paid to an employee in similarly situated jobs.

After a prevailing wage determination has been made, it’s time to conduct the second step in the PERM process which is recruitment. Recruitment is exactly what it sounds like, it’s the test of the U.S. job market. Before an employer can petition for a foreign employee’s green card, they must prove that the hiring of such a worker will not displace any U.S. workers or otherwise disrupt the labor market here at home. This is why, an employer must advertise the position, screen for qualified workers, and conduct interviews with candidates who meet minimum qualifications.

After the employer has conducted the recruitment process and established that no qualified, willing, and able U.S. workers are available to fill the position, it’s time to file an actual PERM Form ETA-9089. An employer can file a Program Electronic Review Management System (PERM) online or through the mail. In the application, the employer is to submit details of the position including job duties, educational requirements, training requirements, and prevailing wages, among other things. After approval, the DOL will notify the employer that the PERM has been approved, and subsequently send an email of the certified Form ETA-9089.

Can a green card holder bring their family to the U.S.?

If you are a primary applicant of one of the five employment-based immigrant visas, your spouse and unmarried child under the age of 21 may apply for a green card as a derivative applicant. However, if you are already a lawful permanent resident, you may also sponsor your spouse and your unmarried children for their green cards.

How to switch from H1B to an employment-based green card?

Many foreign workers who are currently in the U.S. on an H1B visa wish to permanently work and live in the United States. Generally speaking, you may switch from an H1B to an employment-based green card in one of the three ways – (1) if your current H1B employer decides to sponsor your green card, (2) if you receive a job offer from another employer who is willing to sponsor your green card, or (3) that you now qualify under one of the categories which allows you to self-petition on your behalf.

Regardless of the route you take from H1B status to the employment-based green card application, it’s important to ensure there are no gaps in your stay as your transition from the H1B to the adjustment of status. If there is a gap and you end up accruing unlawful presence after your H1B expires and before you adjust your status as a permanent resident, you may have to leave the country and go through consular processing in your home country.

What are the consequences of losing or changing jobs while on an employment-based green card?

A green card is a legal document, formally called Form I-551, which is proof of a non-citizen’s lawful permanent resident status. A U.S. permanent resident is allowed to work and live permanently in the country. Unlike some non-immigrant work visas, a green card or permanent residency is not tied to a specific employer.

Therefore, a recipient of an employment-based green card is free to quit or change jobs, after his or her green card has been approved. However, a quick change in jobs or immediate quitting right after receiving your green card may cast doubt on the employee’s intent. Because the basis of the whole process is for the employee to be able to work for the employer, an immediate switch in jobs will naturally be questioned by the USCIS if you ever decide to naturalize.

An employment-based green card holder may quit or change jobs anytime, but it’s advisable to not make immediate changes, and preferably not change employers for at least 6 months after receiving the green card.

Do I need to hire an immigration lawyer to complete the employment-based petition?

You are not required to hire an immigration attorney to carry out any of the steps including the prevailing wage determination, PERM Labor Certification, filing of the I-140 petition, or filing of I-485 to adjust status. However, an immigration attorney can use his or her expertise to assess your situation, make recommendations, and pursue an avenue that is the most effective for your case – decreasing the likelihood of errors or omissions, and increasing the chance of a favorable outcome.

Immigration Lawyer OKC: Immigration Services in Oklahoma

At Niroula Law, our highly dedicated and skilled lawyer is here to assist you with all your immigration needs. We handle a wide range of immigration cases including family-based visas, employment-based visas, DACA, and Asylum, among other things. We are confident in our ability to provide the client-focused, responsive, and value-oriented service that you need. Whether you are dealing with a complex immigration issue or just need help to navigate the immigration system, our OKC immigration lawyer is here to help.

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