Employment-Based Green Card Options: An Overview

by Carolyn Szaiff Alvarez


There are a variety of ways to become a lawful permanent resident through employment in the United States. The five main employment-based Green Card categories are: EB-1 (for foreign nationals with extraordinary ability, outstanding professors/researchers, or multinational executives/managers); EB-2 (for foreign nationals holding an advanced degree or its equivalent, or foreign nationals with exceptional ability); EB-3 (for skilled workers, professionals, or other workers—as defined within the immigration regulations); EB-4 (for special immigrants—as defined within the immigration regulations); and EB-5 (for immigrant investors). Under each category, there are several ways to pursue a Green Card.

In general, an employment-based Green Card usually requires a petition to be filed on behalf of the foreign national (consisting of forms and other documents in support of the applicant), and in certain categories, a labor certification (“PERM”) is required as well. If both the petition and the PERM are favorably adjudicated, the foreign national can then apply for an adjustment of status (processed in the US) or consular processing (processed outside the US)—the last step in the Green Card process!

While EB-1, EB-2, and EB-3 are the most popular employment-based Green Card options, the EB-4 and the EB-5 are two additional options, although most applicants will not qualify under these last two categories. Clearly, there’s a lot of information to take in when considering employment-based Green Card categories, and so below, we briefly summarize these options.

EB-1

There are three groups of foreign nationals who may obtain a Green Card under this category: individuals with extraordinary ability, outstanding professors or researchers, and multinational executives or managers.

Applicants with extraordinary ability must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Their achievements must be recognized in their field through extensive documentation, but no offer of employment is required. To qualify, the foreign national must either provide evidence of a one-time achievement (like an Olympic Medal or a Pulitzer Prize) or satisfy three out of ten specified criteria.

Outstanding professors and researchers must demonstrate international recognition for their outstanding achievements in a particular academic field. They must have at least three years’ experience in teaching or research in their academic area, and must have an offer of employment at a university or other institution of higher education. To qualify, the foreign national must satisfy two out of six specified criteria.

Multinational executives and managers must have been employed outside the US for at least one year in a managerial or executive capacity in the three years preceding the petition. They must be seeking to enter the US to continue working with a US affiliate/branch/subsidiary of the same employer, and the US company must have been doing business for at least one year.

Generally, the greatest advantage of the EB-1 category is that there is no PERM requirement; however, EB-1s are among the most difficult employment-based Green Cards to obtain.

EB-2

Both professional foreign nationals holding an advanced degree or its equivalent as well as foreign nationals with exceptional ability are able to obtain a Green Card under this category.

Under the advanced degree subcategory, foreign nationals must be applying for a US job which requires an advanced degree or its equivalent—a baccalaureate degree plus five years of progressive work experience in the field. The applicant must then possess the degree and experience required by the employer. Proving that a foreign national is qualified often requires the submission of an official academic record or letters from employers showing that the applicant has at least five years of progressive post-baccalaureate work experience in the specialty.

Applicants with exceptional ability must be able to demonstrate “a degree of expertise significantly above that ordinarily encountered” in the sciences, arts, or business. To qualify, the foreign national must satisfy three out of seven specified criteria.

In both cases, a PERM is usually required; however, certain foreign nationals may request that this requirement be waived because it is in the interest of the US. This is called a “National Interest Waiver.” These are typically granted to those who have exceptional ability and whose employment in the United States would greatly benefit the US.

The advantage of the EB-2 category is that the standard of achievement required is a bit lower than the EB-1. Another advantage is that the PERM may be waived in certain cases; however, the PERM requirement for most cases makes it a lengthy and somewhat complicated process. Furthermore, the advanced degree requirements are often difficult to meet.

EB-3

These Green Cards are available to “skilled workers,” “professionals,” and “other workers,” which all have very specific definitions under the immigration regulations.

Skilled workers refers to those foreign nationals whose job requires a minimum of two years training or work experience, not of a temporary or seasonal nature. They must be performing work for which qualified workers are not available in the US.

Professionals refers to those whose job requires at least a US baccalaureate degree or a foreign equivalent. The applicant must have the required degree, and the degree must be a normal requirement for entry into the occupation. They must be performing work for which qualified workers are not available in the US and education plus experience may not be substituted for the degree requirement.

The other workers subcategory is for foreign nationals performing unskilled labor requiring less than two years training or experience, not of a temporary or seasonal nature. They must be performing work for which qualified workers are not available in the US.

For each subcategory, a PERM is required in addition to a permanent, full-time job offer. The advantage to the EB-3 category is that the standard for qualification is lower than it is for the EB-1 and EB-2. The PERM, however, is required for all cases (with no waiver available) and the requirement that the applicant be performing work for which qualified workers are not available in the US is often difficult to meet.

What is a PERM?

As discussed above, a PERM is often a part of the employment-based Green Card process—specifically, for most EB-2 applicants and all EB-3 applicants. PERM stands for Program Electronic Review Management, and it is often the first stage in the Green Card process. It is filed with the Department of Labor (DOL), rather than with US Citizenship & Immigration Services (USCIS). As part of the process, employers must test the labor market to see if there are any US workers who are able and willing to do the job for which the employer wishes to sponsor the foreign national. For more information, we suggest you check out Liz’s post about the process.

EB-4

These Green Cards are available to “special immigrants,” which has a very specific definition under the immigration regulations. Qualified foreign nationals may include Religious Workers, Special Immigrant Juveniles, Armed Forces Members, Afghan and Iraqi Translators, and others.

EB-5

This category is reserved for foreign nationals who have invested or are actively in the process of investing $1 million (or $500,000 in targeted employment areas) in a new commercial enterprise that will benefit the US economy and create at least ten full-time positions for qualifying employees. Congress created the EB-5 Program in 1990 to stimulate the US economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This set aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by US Citizenship & Immigration Services (USCIS) based on proposals for promoting economic growth.

Overall, the standard for any Green Card is higher than it is for a nonimmigrant work visa. This makes sense—a Green Card allows a foreign national to stay in the US permanently, rather than just temporarily. It also opens up the door for naturalization in the future. The employment-based Green Card process is therefore never a simple one, and we highly recommend retaining an immigration attorney to determine the best options.