An offer of employment from a United States employer can be grounds for obtaining an immigrant visa and Lawful Permanent Resident status (green card). In some relatively rare cases, a person can petition on their own, without a US employer.

Employment-based immigrant visas are divided into preference categories, just like family-based immigrant visas. 

Employment-Based EB2 and EB3 Preference Categories

EB2 generally refers to positions that require an advanced degree (Master’s or above), or its equivalent combination of education and experience.

EB3 can refer to Professional positions (require a Bachelor’s degree), Skilled Worker positions (at least 2 years of previous experience), or Other Workers (less than 2 years of previous experience).

For the vast majority of positions that fall under the EB2 Category and for all EB3 Category positions, the path to a green card is a three-step process:

• Permanent Labor Certification Application (PERM)
• Immigrant Worker Petition
• Application for Adjustment of Status or Application for an Immigrant Visa

Program Electronic Review Management (PERM)

The vast majority of EB2 and all EB3 employment-based immigrant visa petitions require the employer to establish that they have tested the job market in the United States and were unable to find a suitable candidate for the position. This process is called Program Electronic Review Management (PERM).

The PERM process requires a potential US employer to make an effort to recruit qualified US workers for the position before extending a job offer to a foreign worker. The exact steps an employer must take to recruit US workers are specified by the Department of Labor in a special set of rules. Employers often rely on immigration attorneys to assist them in following the recruitment rules, since even a small mistake at this stage can be fatal to a case.

After all required recruitment efforts are completed, an employer files an electronic application with the Department of Labor to certify that it has not been able to find a suitable US worker and may hire a foreign worker for the position.

This first step is usually the most labor-intensive and involves waiting for long periods of time for the Department of Labor to act. It takes approximately fourteen months from start to finish, but this time frame is shifting constantly.

I-140 Immigrant Worker Petition

After obtaining the required certification from the Department of Labor, an employer may file an I-140 Immigrant Worker Petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign worker. At this time, the employer will need to provide a copy of the latest available federal tax return showing sufficient Net Income or Net Current Assets to pay the prevailing wage as determined by the Department of Labor.

USCIS currently takes about ten months to process an I-140 petition, but Premium Processing is available for an extra fee of $2,500 to get a response within 15 calendar days.

Adjustment of Status or Immigrant Visa Application

If a foreign worker beneficiary of an I-140 petition is already present in the US in a valid nonimmigrant status (for example, H-1B or F-1) he or she can file an I-485 Application to Adjust Status, requesting Lawful Permanent Residence status (green card). In most cases, an I-485 Application can be filed concurrently with an I-140 Petition (see above). Immediate family members (spouse and children under 21) who are present in the United States are also eligible to file for Adjustment of Status with the principal applicant.

At the same time, the foreign worker and immediate family members may request temporary work authorization (EAD) and Advance Parole (temporary permission to re-enter the United States without a visa) to allow them to work and travel internationally while their Applications for Adjustment of Status are being processed.

EAD and Advance Parole typically arrive in approximately 7 months, while I-485 Applications take about a year on average to be processed. That said, USCIS processing times can vary a great deal.

If the foreign worker and his or her immediate family are not physically present in the United States, after the I-140 petition is approved, they apply for immigrant visas at a U.S. consulate abroad instead. After the I-140 petition is approved, the foreign worker must provide certain documents to the National Visa Center.  When the documents are complete, the National Visa Center will transfer the case to the consulate, which will schedule the immigrant visa interview. Generally, this takes less time than Adjustment of Status.

When foreign citizens enter the United States with an immigrant visa, they immediately become lawful permanent residents. The green cards then arrive in the mail after a few weeks.

Categories that require a US Employer, but do not require Certification by the Department of Labor

For the employment-based categories described below, a US employer may go directly to Step 2, filing an I-140 Immigrant Worker Petition without a need to obtain certification from the Department of Labor.

EB1-B Outstanding Researcher

This category is available to researchers and scientists who have demonstrated outstanding achievements in their field and have an offer of permanent employment (tenure or tenure track) from an accredited US institution of higher learning, or a comparable research position with a private employer. 

EB1-C Multinational Manager

When a US business entity has a foreign affiliate company, it may petition USCIS for permission to transfer a foreign employee in an Executive or Managerial position to the United States on a permanent basis.

To qualify, the US and foreign company must be affiliated through a parent/subsidiary relationship, or through common ownership by a third party or parties.

To be eligible for a transfer to a US company, a foreign worker must have been employed by a foreign affiliate company on a full-time basis for at least a year in the last three years before the petition is filed.

While this is similar to an L-1 nonimmigrant visa, there is no New Office provision – a US employer company must be operating actively for at least a year before a petition is filed.

The prospective employer (the US business entity) is required to file an I-140 petition. The foreign worker (beneficiary) may have an ownership interest in the US business entity filing the petition on their behalf.

Categories that DO NOT require an employer:

EB1-A Extraordinary Ability

Foreign workers who are able to demonstrate extraordinary achievements in their field of endeavor and are able to demonstrate that they will continue working in the same field in the United States may file an I-140 Petition on their own, without the need for a US Employer.

The criteria for establishing extraordinary ability are similar to the nonimmigrant O-1A and O-1B visas, but EB-1A I-140 Petitions are held to a much higher standard.

EB2 with a National Interest Waiver (NIW)

In some cases, a foreign worker may be able to show that the nature of the specific work they seek to engage in is so important to the national interest of the United States, that it warrants foregoing a test of the US labor market. 

In such cases, an I-140 petition may be filed either by the employer or by the foreign worker and does not require a certification by the department of Labor.