Employment-Based Permanent Residence

Overview

There are several ways for an individual to immigrate to the U.S. and employment-based immigration is one of the most prominent. The U.S. annually allows 140,000 persons to immigrate in this manner.  For most, the path to permanent residence through employment-based immigration contains three stages: (a) the employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL); (b) the employer then petitions the immigration service on behalf of the foreign national for immigrant classification under the employment-based second or third preference; and, (c) the foreign national applies to the immigration service for Lawful Permanent Resident status or the “green card” through adjustment of status in the U.S. or consular processing overseas.  For a few, the burdensome labor certification stage can be bypassed.  Whether or not a labor certification is required depends on the employment-based preference category into which the individual falls.

There are five employment-based preference categories.

  • EB-1: Workers of Extraordinary or Exceptional Ability; Multinational Managers and Executives; and Outstanding Professors and Researchers
  • EB-2: National Interest Waivers, including physicians; Workers with Advanced Degrees (Labor Certification); and Workers of Exceptional Ability in the Sciences, Arts or Business
  • EB-3: Skilled Workers & Professionals (Labor Certification); Schedule A Labor Certification for Nurses and Physical Therapists
  • EB-4: Religious Workers
  • EB-5: Investors

When the initial step is taken in the chosen category, whether the filing of a labor certification or immigration petition (Form I-140), the individual is given a priority date.  If filing a labor certification, the priority date is the date on which the application for labor certification is filed with the Department of Labor.  If the individual is not required to file a labor certification, as is the case in certain employment-based categories, the priority date is the date the immigrant petition (Form I-140) is filed.  

Once a priority date is established, the foreign national must wait for his/her priority date to become “current” before starting the final stage of the process, which is the application for permanent residence or adjustment of status (Form I-485).  As the number of foreign nationals of a particular category aspiring to become permanent residents often surpasses the number annually allowed to become permanent residents, backlogs are common in certain categories.  If there is a backlog, the foreign national must wait for the dates to move in his/her favor until his/her priority date becomes “current.”  If there is no backlog, then the category is “current” and all foreign nationals in that category with an approved immigrant petition may apply for permanent residence.   

Adjustment of Status

If the individual’s priority date is current and the individual is within the U.S., he or she may apply for adjustment of status by filing an application with the immigration service.  The application can remain pending for several months before the immigration service issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” The foreign worker must also have employment authorization while the adjustment application is pending.

Adjustment of status is only available to individuals who have always maintained lawful status in the U.S. There were programs allowing people who had violated their status to adjust status if they had filed labor certifications or immigrant petitions prior to April 30, 2000 and paid a penalty of $1,000.  There are no such programs now, but persons who have violated status and wish to adjust to LPR should contact an immigration attorney.

Consular Processing

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the U.S. for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the U.S. for 10 years. There are very limited exceptions for overcoming these bars.