If you are in the United States on a temporary visa and want to adjust your status to become a permanent resident, you may be eligible for an employment-based green card. Below is a summary of the three main types of employment-based green cards and the qualifications and application processes for each.
EB-1: First Preference
This category of employment-based green card is reserved for immigrants with extraordinary ability in their field, whether it be the sciences, arts, education, business or athletics, as well as outstanding professors and researchers and multinational executives or managers.
To demonstrate that you have extraordinary ability or achievements, you must either present evidence of a major one-time achievement, such as a Pulitzer Prize, Olympic Medal or Academy Award, or meet at least three of 10 criteria, such as receipt of lesser nationally or internationally recognized prizes, membership in industry associations that demand outstanding achievement of members, or evidence of published material about you in professional publications or other major media. You must also show that you will continue to work in your area of expertise.
There are specific rules if you are an outstanding professor or researcher. You must demonstrate international recognition of your achievements and have at least three years of teaching or research experience in your area of expertise. Further, you must be pursuing tenure or tenure-track teaching or comparable research positions in the U.S., and you must present proof of an offer of employment from a qualified employer while showing you meet two of six criteria, such as receipt of major prizes, published material or original scientific or scholarly research.
As a multinational manager or executive, you can qualify if you worked outside the U.S. for at least one year in the three preceding years before the petition or your most recent lawful nonimmigrant admission if you’re already working for the qualified U.S. petitioning employer. The petitioning employer, who must demonstrate intent to employ you in a managerial or executive capacity, must have been doing business in the U.S. for at least 1 year and must have a qualifying relationship to the entity that employed you abroad.
EB-2: Second Preference
The EB-2 category is generally reserved for immigrants who work in professions requiring advanced degrees, who have exceptional ability or who qualify for a national interest waiver.
For professions requiring advanced degrees, not only the position but the immigrant must possess a bachelor’s degree or foreign equivalent plus five years of post-baccalaureate, progressive work experience in the field, while meeting other requirements specific to the position. If a doctoral degree is customarily required for that position, then you must have one (or the foreign equivalent), as well.
To qualify based on exceptional ability in the sciences, arts or business, you must meet position-specific requirements plus three criteria from a list that includes a degree or certificate from an educational institution related to your area of specialty, at least 10 years of full-time experience in your occupation, a professional license or membership in a professional association.
If your employment in the U.S. would greatly benefit the nation, you may qualify for a national interest waiver. For an application to be successful, the proposed endeavor must have substantial merit and national importance, you must be well-positioned to advance the proposed endeavor, and U.S. Citizenship and Immigration Services (USCIS) must agree that it would be beneficial to the country to waive the requirements of a job offer.
EB-3: Third Preference
This is a more inclusive category that is open to professionals, skilled workers and other workers. Professionals are defined as immigrants whose jobs require at least a U.S. bachelor’s degree or foreign equivalent. Skilled workers’ jobs require a minimum of two years training or experience (relevant education may be considered training) and are not of a temporary or seasonal nature. The “other workers” subcategory is for positions requiring less than two years of training, education or experience, and which are not temporary or seasonal.
Application Process
The application process involves Form I-140, Petition for Immigrant Worker and Form I-485, Application to Register Permanent Residence or Adjust Status.
Rules for filing Form I-140 vary by visa category, and even within each category. For the EB-1 visa, applicants who meet the extraordinary ability criteria may use the form to self-petition, while employers of outstanding professors and researchers and multinational managers or executives must file the petition on their behalf.
For most EB-2 and EB-3 visas, Form I-140 must be submitted by petitioning employers, who, for the majority of positions, must also submit an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089. Immigrants requesting a national interest waiver, however, may self-petition using Form I-140 and may also request to have the labor certificate waived.
If you are in the U.S. and you meet certain other criteria, an immigrant visa is immediately available to you as an EB-1, EB-2 or EB-3 immigrant, and you may file Form I-485 to adjust your status without leaving the country. As long as a visa is available, you can file Form I-485 either concurrently with the Form I-140 application, while the application is pending or after it has been approved.
If you would like to speak to an employment-based green card lawyer, contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].
