Employment-Based Immigration

A US green card allows immigrants to gain permanent residency in the United States, either through a family-based or employment-based sponsorship.

The process of international relocation is difficult enough — not to mention that the green card process is different with each path and the processing times vary based on your situation.

To help out, we’ve put together this guide that explains all of the various terms and steps you need to know to successfully apply for your green card!

Types of Employment-Based Green Cards

Note that the employment-based green card process steps can only be started and driven by your employer, meaning you cannot self-sponsor it. As you probably already know, there are other ways to obtain a green card, such as the green card lottery. However, in this article, we focus on Employment-Based Green Card categories and processes.

  • EB-1 is the first preference
  • EB-2 is the second preference
  • EB-3 is the third preference

There are also EB-4 and EB-5 categories, yet these do not fall under the preference system of the first three employment-based categories.

These are the different employment categories that one can gain a green card sponsorship.

EB-1 Visa for Priority Workers

EB-1 visas (first preference category) apply to individuals who have extraordinary abilities, are outstanding researchers or professors, or show evidence of some “sustained national or international acclaim. ” One example of this would be a Nobel Peace Prize winner or an executive or manager of foreign companies.

Only a few applicants fall under this qualification, but if this category applies to you, then you’re in luck! Individuals under EB-1 eligibility typically experience the quickest application process for a green card.

EB-2 Visa for Advanced Degrees

This category is for those who have advanced degrees, exceptional ability in the sciences, arts, or business, or a National Interest Waiver.

Advanced degrees are considered to be a U. master’s degree or higher (or the foreign equivalent), or a U. bachelor’s degree plus an additional 5 years of experience within the specialty.

Exceptional Ability

Exceptional ability in the sciences, arts, or business means “a degree of expertise significantly above that ordinarily encountered” within those fields. This is based on a number of criteria, of which you must meet at least three.

  • Official academic record showing that you have a degree or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

National Interest Waiver

A National Interest Waiver (NIW) is for those who request that the PERM/Labor Certification (stage 1 of the green card process steps) be waived because it is in the interest of the United States. There is no defined qualification for an NIW, but they are typically granted to those who have exceptional abilities.

EB-3 Visa for Skilled Workers, Professionals, or Other Workers

Last up, is the third preference category for those who have jobs that don’t apply to the first two categories. For each of these worker categories, the work performed must be one of which there are not enough qualified workers already available in the United States.

  • Skilled workers must be able to demonstrate at least 2 years of job experience or training
  • Professionals must possess a U.S. baccalaureate degree or foreign degree equivalent
  • Other workers (unskilled workers) must be capable of performing unskilled labor that is not of a temporary or seasonal nature

Other EB Categories

In addition to the first three employment-based preference categories, there are two additional preference categories (EB-4 and EB-5).

  • EB-4 visas are for “special immigrants” such as religious workers, broadcasters, or armed forces members
  • EB-5 visas are typically for entrepreneurs who make a commercial enterprise investment and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. This preference category is also known as the Immigrant Investor Program.

Qualifying for Multiple Categories

Typically, the smaller the reference number (excluding EB-4 and EB-5), the easier the experience you will have with attaining your green card. If you qualify for both EB-2 and EB-3 visas, you should consider what country you are applying to to determine what category to apply under.

Those who are applying from highly-populated countries, such as from China or India may want to apply for an EB-2 visa over an EB-3 visa due to the shorter wait time. Yet, the approval for an EB-2 visa can be more difficult than obtaining approval for an EB-3 visa.

These are the basic three stages of getting an employment-based green card (EB2 and EB3) in the US:

  • Stage 1: PERM/Labor certification stage
  • Stage 2: I-140 immigration petition
  • Stage 3: I-485 Application to adjust status

Each of these stages is explored in more detail below.

Now that you know which employment-based category you fall under, these are the actual steps to attaining your green card status. There are three main stages in the process of getting your green card.

PERM/Labor Certification Stage

PERM stands for “Program for Electronic Review Management” and is the process where your employer shows proof that you (a foreign worker) are not taking away jobs from qualified US workers. This green card step can be done by showing proof, such as a newspaper advertisement, that the employer was unsuccessful in recruiting a qualified U. worker for the position.

For a more in-depth look at the PERM processing time, see below.

I-140 Immigration Petition

The I-140 Petition serves two purposes,

  • Verifies that the job requirements on the PERM application are met by the green card applicant
  • Verifies that the employer is able to pay the offered wages to the employee.

It is important to note that filing an I-140 petition requires a $700 filing fee for regular processing or $1,225 for premium processing.

The USCIS processing time for an I-140 petition depends on whether your employer chose regular or premium processing. Regular processing can take 6 to 9 months, whereas premium processing only takes up to 15 days. Fortunately, most employers choose premium processing for this stage.

To know the exact processing time for your I-140 Immigration Petition, you can visit the USCIS Processing Time Homepage.

I-485 Application to Adjust Status

After the PERM/Labor Certification and your I-140 petition have been approved by the USCIS, the last step is completing the actual green card application!

Unfortunately, since there are only a certain number of green cards available per category and per country, this process is often the longest for applicants. There are current applicants who have been waiting for over 10 years for their 1-485 applications to be processed by the USCIS.

However, once your I-485 application has been processed and approved, you’re done! You will receive a stamp on your passport and the long-awaited card granting you permanent residence in the United States.

PERM Processing Time 2022

To understand how long your PERM processing will, you must first understand the overall PERM application process. There are three steps to the PERM application:

  • Prevailing Wage Request
  • Recruitment
  • Application

Each of these steps is discussed in more detail below.

Prevailing Wage Request

In this step, your employer will file a prevailing wage request to determine your pay/salary, based on where your job is located and the current economic environment.

Processing times for this step can vary from a few weeks to a couple of months, depending on the volume of requests.

PERM Processing Step 2

During this step, your employer must go through an extensive recruitment process. The employer will post multiple job listings and advertisements and interview any U. workers who apply.

PERM Processing Step 3

To complete the PERM process, your employer must complete and file an ETA-9089 form.

When the application is submitted online by your employer, a decision will be sent, typically, within 6 months if the application is not audited, making this the quickest possible option.

PERM Processing Time Breakdown

So, if your employer completes all of the PERM-related tasks in a timely manner the timeline might look like this:

  • Prevailing Wage Request: 2 Weeks processing time
  • Recruitment Period: 8.5 Weeks (60 days)
  • Application: 24 weeks (6 months)

In this ideal scenario, the complete PERM Processing can be complete in a little more than 34 weeks or almost 9 months. Bear in mind, though, that this is the ideal scenario and there are many factors that can extend the duration of the process.

Green Card Processing Times

So, how long does it take to get a green card? For the most part, EB green cards’ processing times will depend on the service center where your petition is processed. The total processing time also depends on the steps in the process that need to be completed.

I-140 Processing Time 2022

The I-140 is your immigration petition. With the I-140 the PERM (Program Electronic Review Management) labor certification job requirements and the employer’s ability to pay the offered wage to the employee, is verified. All EB green cards require a Form I-140.

The I-140 processing time is usually around 6 months but largely depends on the service center. Most service centers will give you an estimate but remember these are just estimates.

The USCIS also offers a premium processing service for Form I-140 which brings the processing time down to 15 calendar days. Premium processing comes at a fee of $1,225.

EB1 Green Card Processing Time 2022

EB1-A is an employment-based, first-preference immigrant visa for individuals with exceptional abilities in the fields of science, art, education, business, or athletics. When applying, you will have to show how your expertise and skill will benefit the U.

EB1-A visas have expedited processing times due to not having to go through the PERM labor certification process.

The processing time for your EB-1B green card will depend largely on the service center where your application is processed. Processing and receiving approval for your “Extraordinary Ability” petition via your I-140 form can sometimes take up to six months since filing with the USCIS. It might be worth considering premium processing.

Premium processing will bring processing time down to 15 calendar days. There is a premium processing fee of $1,225 that will apply.

After your I-140 has been approved, you still need to submit your Form I-485 after you have reached your priority date. The Form I-485 processing time is also around 6 months.

You can check the current month’s Visa Bulletin to see which priority dates have become current.

EB1B Green Card Processing Time 2022

The EB1-B is also a subcategory of priority workers. Individuals who have received international recognition for being outstanding in a specific academic area qualify for this category. You will need at least three years of experience in research or teaching in your academic field. This category requires an offer of employment (although no labor certification is required).

The processing time for your EB-1B green card will also depend on the service center where your application is processed. As explained above, your I-140 petition can sometimes take up to six months, unless you choose premium processing which brings this time down to 15 calendar days.

After you have waited for your priority date (which time period will depend on the country you are from) you have to file your Form I-485. The processing time for your Form I-485 is also around 6 months, depending on your service center.

EB1C Green Card Processing Time 2022

The EB-1C is also an extraordinary ability immigrant visa aimed at proficient and skilled foreign executives and managers. You can get an EB-1C green card by either filling out an Adjustment of Status application from an L-1A visa while you are in the U. S, or you can apply from outside the U.

The processing time for your EB-1C green card will also depend on the service center where your application is processed. As explained above, your I-140 petition can sometimes take up to six months, unless you choose premium processing which brings this time down to 15 calendar days.

EB2 Green Card Processing Time 2022

The EB-2 green card is available for three categories of individuals:

  • Advanced degrees: these are foreign nationals who have a degree beyond a bachelor’s such as a Master’s or Doctorate degree. The foreign equivalent of a bachelor’s degree with 5 years of work experience will also qualify. This category has to go through the labor certification process.
  • Exceptional ability: this is for foreign nationals who have a specialized degree and have significant competence in either arts, science or business. This category also has to go through the labor certification process.
  • National Interest Waiver: you can apply to have the labor certification process waived if you can prove it is in the national interest to do so.

On average, it takes about 6 months to process your Form I-140. If you have to go through PERM Labor Certification, it can even take up to 8 months to 2 years.

You can expedite your Form I-140 processing through premium processing. For a fee of $1,225, your processing time will come down from 6 months to 15 calendar days.

After receiving your approved Form I-140, you’ll have to wait for your priority date to become current, after which you can submit your Form I-485. This step takes about another 6 months, but will also depend on your service center.

EB3 Green Card Processing Time 2022

EB-3 is also an employment-based preference green card. This green card is the third preference. The EB-3 is for an individual who either has a bachelor’s degree, is a skilled worker with at least two years of experience in the relevant field, or is an unskilled worker.

  • PERM Labour Certification – can be as little as 6 months, but remember the 30 days of recruitment and 30 days that need to pass after recruitment. If your employer has to be audited this process can take up to 18 months
  • Waiting for your priority date – this will depend on your country. Usually, it is a few months.
  • Form I-485 – this can also take 6 months or longer, depending on your service center.

Final Thoughts on the Green Card Process

It goes without mentioning that the green card process can be incredibly long depending on your type of eligibility and the country you are applying from. Yet, if you are planning to live your life in the United States, then a green card is your best solution to gaining permanent resident status.

Sources Referenced

Apply online for the loan amount you need. Submit the required documentation and provide your best possible application. Stronger applications get better loan offers.

Accept

If your application meets the eligibility criteria, the lender will contact you with regard to your application. Provide any additional information if required. Soon you’ll have your loan offer. Some lenders send a promissory note with your loan offer. Sign and return that note if you wish to accept the loan offer.

Repay

The loan then gets disbursed into your U. bank account within a reasonable number of days (some lenders will be as quick as 2-3 business days). Now you need to set up your repayment method. You can choose an autopay method online to help you pay on time every month.

Employment-Based Immigration

About Stilt

Stilt provides loans to international students and working professionals in the U. (F-1, OPT, H-1B, O-1, L-1, TN visa holders) at rates lower than any other lender. Stilt is committed to helping immigrants build a better financial future.

We take a holistic underwriting approach to determine your interest rates and make sure you get the lowest rate possible.

Rohit Mittal

Rohit Mittal is the co-founder and CEO of Stilt. Rohit has extensive experience in credit risk analytics and data science. He spent years building credit risk and fraud models for top U. banks. In his current role, he defines the overall business strategy, leads debt and capital fundraising efforts, leads product development, and leads other customer-related aspects for the company. Stilt is backed by Y Combinator and has raised a total of $275M in debt and equity funding to date.

What is an EB2 Green Card?

EB2 stands for “Employment-Based Second Preference Category. ” An EB2 Green Card is a green card you qualify for based on your education or profession. EB2 is a great way of earning permanent status here.

Before we cover the EB2 Process, let’s review the types of EB2 green cards. There are three categories of EB2 visas, which means there are three ways to qualify for an EB2 green card.

  • Advanced Degree: Under this EB2 visa category, you must have a job offer in the U.S. The job offer must be for a position that requires you to have an advanced degree (a master’s degree or PhD.). Alternatively, the job offer can require you to have a bachelor’s degree plus 5 years of experience.
  • Exceptional Ability: In this category, you must demonstrate you are a noncitizen with exceptional ability. Your exceptional ability must be in the sciences, arts or business. To get an EB2 green card under this classification, you must have a job offer.
  • National Interest Waiver (NIW): For this EB2 visa category, immigration requires no job offer. An EB2 NIW waives the job offer requirement of the other two categories under certain conditions. These conditions are if you can prove you have an advanced degree or exceptional ability and meet three other criteria. We discuss the three additional criteria in more detail below.

What’s the Difference between the EB1, EB2, and EB3 Categories?

Let’s learn the differences between EB2 and Employment-Based (EB) immigrant subcategories.

What is the difference between EB1 and EB2?

EB1 stands for “Employment-Based First Preference Category. ” This is often referred to as visas or Green Cards for “geniuses. ” The EB1 is designed for the leaders in fields  of science, art, education, business, or athletics. It, too, is divided into three subcategories:

  • Individuals in the top percentile in their field. (EB1-A visa).
  • Noncitizens outstanding researchers or professors. (EB1-B visa).
  • Employees considered “executives” or “managers” of multinational companies. (EB1-C visa).

In order to qualify for one of the EB1 classes, you must show you meet the criteria.

What is the difference between EB 2 and EB3?

EB3 stands for “Employment-Based Third Preference Category. ” Like some of the EB2 Visa classes, immigration laws require you to have a job offer. The job offer must be for a position for “professionals, skilled workers, and unskilled workers

Note: a “professional” under the EB3 visa category requires a minimum of a bachelor’s degree. This is less than the education require by the EB2 Visa category.

The EB2 Categories and Criteria

The EB2 Green Card process is complicated. To help you understand, we provide the steps, forms and timeline in the next section. But first, we explain how to meet the criteria for each of the three EB2  subcategories.

EB2 Green Card Through an Advanced Degree

To get an EB2 Green Card through your Advanced Degree, you need a job offer from a U. employer. The job offer must be for a type of job that requires an advanced degree (a master’s degree or above). Alternatively, an employer may require that you have a bachelor’s degree plus five years’ experience in a field related to the position.

Once you have a job offer, the U. employer must advertise the offer to the general public. The requirement makes sure there are no U. workers that the employer could hire. In other words, the U. government does not want to give you an EB2 green card to work a job for which a U. worker could be hired. Thus, the U. employer must ask the U. Department of Labor to certify that it properly advertised and recruited U. workers.

Once the U. employer obtains certification from the Department of Labor, you can apply to USCIS for your EB2 Green Card. To qualify, you provide an academic record showing you have the advanced degree for the position listed in your job offer. Additionally, you must meet any other requirements for the position.

Alternatively, you may show you have the required bachelor’s degree plus five years relevant experience. To show you have this experience, you’ll have to present letters from former employers.

EB2 Green Card By Demonstrating Exceptional Ability

The EB2 process for a noncitizen of exceptional ability also begins with a job offer. The job must fall within the “science, arts or business” as defined by the immigration laws. Also, the job must require “Exceptional Ability,” which is “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business

Once the job is offered, then the U. employer must test the labor market. Just as the EB2 Green Card for those with Advanced Degrees, the job must be offered to the general public. The U. Department of Labor wants the U. employer to prove that there are no U. workers who could be hired. Once the employer has advertised the position to the general public then it can request certification from the Labor Department.

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability.
  • Letters documenting at least 10 years of full-time experience in your occupation.
  • A license to practice your profession or certification for your profession or occupation.
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
  • Membership in a professional association(s).
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.
  • Other comparable evidence of eligibility is also acceptable.

EB2 NIW

Unlike the other two subcategories, you do not need a job offer to get a Green Card through the EB2 NIW subcategory. NIW stands for “National Interest Waiver. ” This means to obtain an EB2 Green Card you need to prove it is in the “national interest” to “waive” testing the labor market.

But that does not mean that you will never have a job offer in an EB2 NIW case. In some cases, a U. employer will file an NIW on your behalf, but the involvement of a U. entity is not required. There are cases when you can self-petition and will not need a U. company to sponsor you. In other words, you can self-petition for an EB2 Green Card.

Under either U. employer-filed or self-petition EB2 NIW, you will need to prove two things.

  • The proposed endeavor has both substantial merit and national importance.
  • You are well positioned to advance the proposed endeavor.
  • It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

EB2 NIW Physicians

  • Agree to work full-time in a clinical practice. For most physician NIW cases, the required period of service is 5 years.
  • Work in a primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialty physician.
  • Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA).
  • Obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation).

Note, it’s also possible for a physician to self-petition in this EB2 NIW subcategory. In order to do so,   you must meet all of the listed criteria and provide evidence of self-employment. Examples of reliable evidence of self-employment include a business plan, office lease and evidence of funding.

More helpful information about EB2 Process

Typically the steps for the EB2 for a Green Card are:

  • Obtain a qualifying job offer
  • Get a labor certification from the U.S. Department of Labor unless otherwise waived.
  • Show immigration officials that you qualify for the EB2 category (Form I-140)
  • Apply for your EB2 Green Card (Form I-485)

What forms do you need for the EB2 Process?

The immigration forms involved are the Form I-140 and Form I-485 filed with the United States Citizenship and Immigration Service. These forms are sometimes filed at the same time depending on your circumstances.

What is the timeline for an EB2 Green Card?

The EB2 timeline depends on the availability of immigrant visas in that category as listed in the visa bulletin. This is because the government issues only a limited number of green cards in the EB2 category. The visa bulletin is the public notice of the availability of those immigrant visas (aka green cards). In other words, the visa bulletin is ultimately the determinative factor for timeline.

In order to read it, check whether your country of origin is listed. If it’s not listed then look under the column “All Changeability Areas Except Those Listed. ”  Once you have found the right column then go to where it says “2nd. ”  Check what date is listed under “2nd” category using the country you identified.

You only have to wait for application processing times if the date has a “C. ”   If there is a date listed, then immigration is processing only those petitions (Form I-140) filed before that date. Meaning, you can’t get your EB2 green card until your date is current.

Employment-Based Immigration

Eligible persons for EB2 immigrant visa include those who:

  • Hold an advanced degree or its equivalent; or
  • Have an exceptional ability in the sciences, arts, or business.
  • EB-2A Advanced Degree Professionals
  • EB-2B Exceptional Ability
  • EB-2C National Interest Waiver

The EB-2 visa was introduced as part of the new Immigration Act of 1990, and from 2008 to the end of 2014, a total of 129,316 EB-2 Visas have been issued to immigrants from India. In 2014 alone, Indian Immigrants received 49. 8 percent of the 49,071 EB-2 visas issued.

Applying for EB2 Visa

Applications for a EB-2 Visa, under the categories for a person having an Advanced Degree, or a person having exceptional ability, must be accompanied by a individual labor certification from the Department of Labor on Form ETA-750.

An application for waiving the national interest can be made by the applicant by filing directly to United States Citizenship and Immigration Services, including submission of the I-140 Form, Petition for Alien Worker.

Required Documents for EB2 Green Card Filing

  • Evidence showing full time employment
  • Unless qualified for Nation Interest Waiver (NIW), in which case show evidence proving benefit to the nation
  • Filed and approved labor certification
  • A labor certification is required even if petitioner qualifies for NIW
  • Academic transcripts showing petitioner has advanced degree from the US or a foreign equivalent
  • Letters from employer/s showing progressive work experience in the field of study

Process of Applying for EB-2 Category US Green Card

  • First and foremost, have a full time employment with a US based firm
  • File for and get approved for Labor Certification
  • If qualifying for NIW, apply for NIW
  • NIW also requires to file for and approval for labor certification
  • Apply for and get approved for Form I-140, Petition for Immigrant Worker
  • Await for USCIS to update your cutoff dates and assign you a priority date
  • Apply for Adjustment of status or consular processing, whichever is applicable
  • Await US permanent residency based on backlog

EB-2A Advanced Degree

  • To apply for an Advanced Degree EB2 Visa, the applicant must hold at least a master’s degree or its equivalent, or a bachelor’s level degree with a minimum of five years of increasing experience. Not all advanced degrees are eligible, and applicants should confirm their qualifications satisfy USCIS regulations by checking on the USCIS website.
  • The job the applicant is applying for under the EB2 visa must require an advanced degree or the equivalent qualifications.

Employment-Based Immigration

EB-2B Exceptional Ability

Individuals applying for the exceptional ability subcategory of the EB2 visa should be able to demonstrate their exceptional ability.

EB-2C National Interest Waiver

Those applying for either EB2 visa subcategory may apply for a labor certification waiver if they believe their job is in the national interest of the United States. Such applications may be considered for:

  • Physicians who agree to work full-time in areas where there is a shortage of healthcare professionals, or;
  • Entrepreneurs that satisfy certain conditions.

Applicants applying for a National Interest Waiver must:

  • Have a job offer, and;
  • May self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest.

Sample Form I-140 Approval Notice

Employment-Based Immigration

This sample is provided for your convenience and reference purpose only.

by Michael Ryvin, Owner and Partner, Ryvin Wallace Group

Many of our readers are working in the United States pursuant to H-1B status, and have established their place in the green card line by having an approved labor certification (PERM) application, and I-140 petition for immigrant worker.

For those foreign nationals with approved EB-3 I-140 petitions, the wait time for an actual green card could be five, six, seven years, or more! If you are in this group, it is important to understand the process of upgrading your case from EB-3, to a higher preference category.

A SUCCESSFUL UPGRADE COULD SHAVE YEARS OFF YOUR GREEN CAR WAIT TIME.

The Basic Requirements

If you have an approved EB-3 I-140 petition and either your current employer or a prospective employer is willing to consider helping you file a SECOND labor certification (PERM) application, and I-140 petition, you may be eligible to upgrade from EB-3 to EB-2 AND retain your earlier priority date. Depending on your country of birth and earlier priority date, this process might even make you eligible for a green card immediately.

Next Steps

A second labor certification could be beneficial if it can be filed to qualify for a higher preference category (e. , EB-2), especially if the higher preference category is now “current” for the employee’s country of birth or chargeability. As an analogy, think of the preference category as a waiting line. Generally, the EB-2 preference category line has a shorter wait for the green card than the EB-3 preference category line. Therefore, if two people set their places in line the same day, the EB-2 preference category individual is likely to be eligible to apply for a green card before the person in the EB-3 line.

In some cases, filing a second I-140 will also enable the employee to recapture an earlier priority date. For labor certification based green card applications, the priority date is the date that the labor certification application is received at the Department of Labor. In order to be eligible for recapture of a priority date, an I-140 must be approved and the employee must experience a job change that justifies filing a second labor certification. To continue the above analogy, the priority date establishes an individual’s place in the line.

So, an individual who has an earlier priority date in the EB-3 preference category will be nearer the front of the line when compared to someone whose labor certification was just filed today. Therefore, recapturing an earlier priority date is advantageous because it allows an employee to retain the earlier priority date. If the employee is also upgrading from EB-3 to EB-2, he or she can step in to the EB-2 line with the earlier priority date established by the approved I-140 petition in the EB-3 category. There is no need to go to the back of the EB-2 preference category line.

When is a second I-140 Appropriate?

Filing a second labor certification can be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when

  • the employee qualified for EB-2 at the time he or she began working in the current occupation;
  • the company/employee’s manager approves EB-2 requirements; and
  • the employee has experienced an objective change in the terms of employment such that EB-2 qualifications are now required for the job.

The objective change may consist of a promotion or a new work assignment that requires higher qualifications.

Requirements for the Employment Based Second Preference (EB-2) Eligibility

EB2 qualifications: A job will qualify for EB-2 if it requires:

The application of these rules to an employee’s credentials can be complex and requires careful, case-by-case analysis. If an employee wishes to qualify for an upgrade from EB-3 to EB-2, the employee must meet the basic requirements for EB-2. In addition, in order to recapture an earlier priority date, the employee must have an approved I-140 naming him or her as the beneficiary. If the approved I-140 is revoked or withdrawn before the second I-140 is approved, there is no longer an earlier priority date to recapture. It is always risky to rely on an approved I-140 filed by a prior employer, because the prior employer can withdraw the I-140 without notice to the beneficiary. Of course, this is not a problem if there is no need to recapture the priority date.

Frequently Asked Questions

Question 1: I was qualified for EB-2 when I joined my Employer. However, my first job did not require EB-2 qualifications. After my Employer obtained an approved I-140 for me based on my RIR labor certification, I was promoted. Am I eligible to be considered for an EB-2 upgrade and can I recapture my first priority date?

Answer: Yes. The first I-140 was already filed at the time of the event justifying a new labor certification. Thus, each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204. 5(e).

Question 2: I was qualified for EB-2 when I joined my Employer. However, my first job did not require EB-2 qualifications. After my Employer filed a labor certification for me but before an I-140 could be filed, I was promoted. Am I eligible to be considered for an EB-2 upgrade and can I recapture my first priority date?

Answer: You should be able to have a new labor certification filed for you that would qualify for EB-2, but you wouldn’t be able to recapture the earlier priority date, since no I-140 was filed on the first labor certification. However, an EB-2 upgrade could still be beneficial if your preference category is “current” for example the “Worldwide EB2” category.

Question 3: What type of job change might make me eligible to be considered for an EB-2 upgrade?

Answer: The types of job changes that could trigger EB-2 eligibility include a change in occupation, a promotion, an increase in scope of responsibility, acquisition of supervisory duties and/or addition of research responsibilities to your job duties.

Question 4: Does it make a difference if my I-485 (application for adjustment of status or AOS) has already been filed?

Answer: No. If your 1-485 has been filed, it may be possible to interfile the second I-140 into the pending I-485.

Question 5: Can I recapture an earlier priority date if my previous employer had filed my I-140 petition before I joined my current Employer?

Answer: It depends. If the I-140 filed by the previous employer has not been withdrawn, you may recapture the priority date. However, an employer may withdraw an I-140 without notice to you, the beneficiary. If the approved I-140 is withdrawn, there is no longer an earlier priority date to recapture. If the prior I-140 has been withdrawn, the immigration service would approve the second I-140 but the priority date would most likely be the date that the second labor certification was filed.

Question 6: My EB-3 RIR was filed and then my current Employer filed an EB-2 PERM for me. Neither I-140 has been filed yet. Can I get the EB-3 priority date and qualify for EB-2?

Answer: No. If you are going to be employed in the EB-2 job and an EB-2 I-140 petition will be filed, your current Employer cannot also file an I-140 in the EB3 category. The EB3 1-140 would not be truthful at the time it is filed. However, it may still be a green card benefit to have the approved EB-2 labor certification.

Question 7: My EB-3 RIR was filed. Then my current Employer filed an EB-2 PERM and already obtained an approved I-140 in the EB-2 preference classification. My EB-3 RIR was recently approved. Can I recapture the EB-3 priority date?

Answer: No. Since you are going to be employed in an EB-2 job, your current Employer cannot go back and file an EB-3 I-140 petition. The EB3 I-140 petition would not be truthful at the time it would be filed.

Question 8: My EB-3 PERM was approved and my current Employer then filed an EB-3 I-140 petition. After that, my job changed substantially. Am I eligible for an EB-2 upgrade and can I recapture the earlier priority date?

Answer: You can file a second PERM application for the same occupation if the job opportunity has changed, even if the occupation code has not changed. However, the Department of Labor (DOL) will only allow a second PERM application for the same employer, same employee, and same occupation if it determines that the job opportunity is not the same. A DOL analyst will need to compare the two PERM applications to decide if the job opportunity is different. Thus, processing time for the second PERM application might be longer than usual, although based on our firm’s recent experience, some applications are certified in less than a month. If the job opportunity is determined to be the same, then it may be necessary to withdraw the EB-3 PERM (or have it cancelled by DOL) before filing the EB-2 PERM, and you will not be able to recapture the priority date.

Question 9: I am in my 8th year of H-1B status. Does this affect my eligibility for an EB-2 upgrade?

Question 10: I earned my four-year Bachelor’s degree and have been employed by my current Employer as a Software Engineer for the last five years. I have an approved EB-3 I-140 petition. Am I qualified for an EB-2 upgrade?

Answer: No. Although you have now acquired more than five years of experience after your Bachelor’s degree, you gained all of this experience at your current Employer in your current occupation of Software Engineer. You cannot rely on any experience you gained at the same employer in the same occupation in a labor certification. In order to qualify to be considered for an EB-2 upgrade, you must change to an occupation where there is less than 50% overlap of job duties in order to rely on experience you gained at your current Employer.

Question 11: I joined my current Employer as a Software Developer and acquired my MBA while working as a full-time employee. My current Employer provided tuition reimbursement. My current Employer filed a labor certification for me as a Software Developer and I have an approved EB-3 I-140 petition. Now I have accepted a new position with my current Employer as a Marketing Manager. Am I eligible for an EB-2 upgrade now that I have a Master’s degree?

Answer: No. If your current Employer provided tuition reimbursement, the education you obtained (the Master’s degree) cannot be used as a job requirement in your labor certification.

Question 12: My Employer obtained an approved EB-3 I-140 petition and then I was transferred to work for my Employer in a different location that is outside normal commuting distance from the first worksite. Am I eligible for an EB-2 upgrade?

Answer: You will need a new labor certification because the first labor certification is valid only for the specific geographic location. If your job has changed since the first labor certification was filed, and you are qualified for EB-2, you may be eligible for an EB-2 upgrade. The need for a new labor certification provides a good opportunity to evaluate your situation to see if the job has changed and if you are qualified for an EB-2 upgrade.

EB-3 is the third preference employment based immigrant visa category for foreign nationals to obtain permanent residency in the US. Eligible applicants for the EB-3 green card include skilled workers, professionals, and other workers. If you are a foreign national and possess a degree or have work experience, you may be eligible for an EB-3 green card.

Employment-Based Immigration

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  • EB3 Green Card – Employment Based 3rd Preference Immigrant Visa

EB-3 is the third preference employment based immigrant visa category for foreign nationals to obtain permanent residency in the US. Eligible applicants for the EB-3 green card include “skilled workers, professionals, and other workers. ” If you are a foreign national and possess a degree or have work experience, you may be eligible for an EB-3 green card.

Only 40,000 green cards in total are available each year for EB-3 category, out of which 10,000 are allotted to unskilled workers.

Some of the highlights of the EB-3 green card category include:

  • Provides permanent residence in the US.
  • The worker with permanent residency can travel freely.
  • For the EB-3 process, the employer is the petitioner and alien is the beneficiary.
  • EB-3 visa holders may apply for dependent visas for their spouse or unmarried children under age 21.

EB-3 Subcategories

The EB-3 immigrant visa category is comprised of three subcategories. These include:

Employment-Based Immigration

  • EB-3B: The second subcategory is for Professionals who have a US baccalaureate degree or its foreign equivalent. Professionals eligible for this subcategory might include architects, lawyers, physicians, engineers, and teachers.
  • EB-3C: The third subcategory is for Unskilled Workers or Other Workers with less than 2 years of training or work experience, not of a temporary or seasonal nature. Eligible applicants for this category might include housekeepers, janitors, nurse’s aides, garden workers, and farm workers.

Sponsoring Employer

  • Must be able to show that he/she is able to pay the wage offered by the time of the beneficiary’s visa priority date.
  • Must provide documents such as an annual report, federal income tax return, or audited financial statement to demonstrate an ability to pay the wage.
  • Labor certification
  • A permanent, full-time job offer from a US employer

Process For Applying For An EB-3 Green Card

To apply for an EB-3 immigrant visa, review the application process below:

  • Perform the labor certification or PERM process – Petitioner/Employer must sponsor the applicant & obtain a labor certification from the US Department of Labor on behalf of the alien. PERM: Labor Certification process
  • File a Form I-140, Petition for Alien Worker – Employer must petition for an alien worker to become a permanent resident in the US. This will confirm the applicant’s priority date. The purpose is to prove that the applicant qualifies for EB-3 visa.One purpose of I-140 petition that requires a certified Labor Certification is to establish that the employer has the ability to pay the offered wage stated in the Labor Certification application.  Form I-140 application procedure.
  • File a Form I-485 or Take Consular Processing Interview – Upon approval of Form I-140, the beneficiary, if legally in US, may apply for adjustment of status or take consular processing interview at a US consulate in your country. The purpose is to become a lawful permanent resident of the US.Form I-485 application procedure and consular processing.

Additional Information

  • EB-3 applicants may not “self-petition” for their immigrant visa; they require a sponsoring employer.
  • The applicant does not need to be employed when the labor certification is filed.
  • The spouse of EB-3 applicant may be admitted to the US under E34 (spouse of a Professional or Skilled Worker) or EW4 (spouse of an Other Worker) visas.
  • Minor child of EB-3 applicant may be admitted to the US under E35 (child of a Professional or Skilled Worker) or EW5 (child of an Other Worker) visas.
  • During the process when the applicant and his/her spouse are applying for Legal Permanent Resident (LPR) status, the spouse is eligible to file for an Employment Authorization Document (EAD).
  • Education and experience may not be substituted for a baccalaureate degree.

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If you are applying for an EB-2A visa, you will need an advanced degree in your field or its foreign equivalent plus 5 years of post-baccalaureate or any other progressive work experience in your field. In addition, you must meet the other requirements specified in your particular labor certification.

  • an official academic record showing that you have a U.S. advanced degree or a foreign equivalent
  • an official academic record showing that you have a U.S. baccalaureate degree or foreign equivalent
  • letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in your specialized field
  • a doctoral degree (or foreign equivalent)

Requirements for EB-2B Visa (Exceptional Ability)

  • Official academic records showing that you have a degree, diploma, certificate, or a similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession/occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Any other comparable evidence of eligibility

Requirements for EB-2C Visa (National Interest Waiver)

  • The proposed endeavor has both substantial merit and national importance
  • The applicant is well-positioned to advance the proposed endeavor
  • It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification

Along with their self-petitioned Form I-140 (Petition for Alien Worker), those seeking a national interest waiver must also file their labor certification directly with USCIS.

What is the application process for these visas?

Applicants for EB-2A and EB-2B must first have their employer file Form I-140 (Petition for Alien Worker) and wait for their priority date (a spot to open up in the visa bulletin). Once a spot has opened up, they will be called to a U. Embassy or Consulate (if abroad) for an interview.

Those individuals who are seeking a national waiver can self-petition with their Form I-140 (Petition for Alien Worker). Employers for EB-2A and EB-2B applicants must be able to demonstrate that they can continually pay the offered wage whilst working in the U. To do this, the employer can submit an annual report, federal tax return, or audited financial statement to prove that they have the funds.

  • Certify that a job is available and is in a specialized professional field
  • Demonstrate that the job is also available to U.S. workers
  • Demonstrate that a foreign worker is needed
  • Demonstrate that the pay rate for the job is at a prevailing industry rate

To ensure that no qualified American workers are available for the employment position, employers must go through an extensive recruiting process. Once all the requirements are met, the Department of Labor will issue a PERM form and the employer can then sponsor a foreign worker for an EB-2 visa.

What are the fees?

  • Form I-140 (if you are self-petitioning): $700
  • Form DS-260 (Immigrant Visa and Alien Registration Application): $325
  • Form I-485 (Adjustment of Status), this form is if you are already in the U.S. under a different visa and need to adjust your status to an EB2 visa
  • Medical Examination and required vaccinations: costs may vary
  • Certified Translations (if applicable): costs may vary
  • Travel expenses: costs may vary

Your U. employer will be responsible for any costs associated with acquiring a PERM form. Currently, there is no charge to the filing fee for the PERM form.

How long does it take to get an EB2 visa?

The processing time to get an EB2 varies depending on how long it takes for you to receive your priority date, in other words, for a spot to open up in the visa bulletin. The wait time for this will depend on a number of factors such as if there is a USCIS backlog of visa applications and what country an applicant is applying from. For instance, if you are applying from China or India, the wait time is much longer.

The average processing time for Form I-140 is around 6-9 months. Premium Processing is available for those who do not want to wait months for their Form I-140 to process. This type of expedited processing will process your visa application in 15 calendar days. If you choose to have your application premium processed, you must first file Form I-907 (Request for Premium Processing Service) and pay the $2,500 fee. Keep in mind that this service is not available for those EB2 visa applicants who are seeking a National Waiver.

For those who need a PERM Labor Certification, the process can take an additional 8 months to 2 years. This depends on how your employer conducts their recruitment process and if they are audited for it. If you need more details about this process and how long it will take, it is recommended that you speak with an experienced immigration attorney who can advise you on your timeline and options.

What happens at the Interview?

Since the EB2 visa is a worker’s visa that allows for permanent residency, you will be asked to attend an in-person interview at your local U. Embassy or Consulate. If you are in the U. when filing, you will be asked to go to a local USCIS field office.

In this interview, the USCIS officer will call you into a private area, ask you to raise your right hand and promise to tell the truth then check your photo I. After this, the officer will ask you some questions regarding the information in your application visa file. Questions asked are normally at the interviewer’s discretion however the interview will likely ask you questions about your background, your job qualifications, details about your job offer in the U. , and your employer.

After the interview, if the immigration official is satisfied with the answers given, your visa will be approved. It should be noted, that any dependents who are also on your visa application must attend an interview as well. However, the interview is waived for children under 14 years old. If you are attending the interview with your spouse or children, they will be asked certain personal questions as well like how long you and your spouse have been married, where were your children born, and any other relevant questions that prove you are in a bona fide relationship. This interview is more light and friendly than intimidating so try not to get too worried or stressed out about it.

What documents should I bring with me to the interview?

  • A passport that is valid for at least six months beyond the intended date of entry into the U.S.
  • Two 2×2 photographs that meet U.S. Visa standards
  • Any relevant immigration documents received after your petition was filed
  • A letter from your employer confirming employment
  • Completed Medical Examination and Proof of Vaccination Forms
  • Marriage and birth certificates if you are interviewing with your family who will also come with you to the U.S.

All documents submitted should be in their original form. These will be given back to you usually at the end of the interview.

Required Medical Examinations and Vaccinations

In order to be approved for a U. immigrant visa, all applicants must first complete a medical evaluation proving that they are healthy enough to enter and live in the United States without posing a risk to the general public. In addition to this medical examination, the applicant must also receive the required vaccinations.

Instructions for what specific vaccinations are needed along with the required medical examination form will be sent to the applicant in the first NVC packet. All medical forms must be signed by a licensed doctor. These will be included in the portfolio of evidence that will be submitted later.

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