EB-2: Employment-Based Immigration, Second Preference

To qualify for this preference category, the foreign employee must meet one of the following criteria:

  • Advanced Degree: The position offered to the foreign employee must require an advanced degree (beyond a bachelor’s degree), and the foreign employee must possess such a degree or its equivalent (a bachelor’s degree plus 5 years progressive work experience in the field); or
  • Exceptional Ability: The foreign employee must have exceptional ability in the sciences, arts, or business. The foreign employee must meet at least 3 of the following criteria:
    • 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.

EB-3: Employment-Based Immigration, Third Preference

To qualify for this preference category, the foreign employee must meet one of the following criteria:

  • Professionals: The offered position must require at least a U.S. bachelor’s degree or foreign degree equivalent, and the foreign employee must possess such a degree or its foreign equivalent;
  • Skilled Worker: The offered position must require at least 2 years of job experience or training, and the foreign employee must possess such experience or training; or
  • Unskilled Workers (Other Workers): The foreign employee must be capable of performing unskilled labor requiring less than 2 years of training or experience.

Validity Period

Following a successful Adjustment of Status or acquisition of an Immigrant Visa, applicants are granted lawful permanent resident status, and are issued Green Cards valid for 10-years and renewable indefinitely.

Procedure Overview

STEP 1: Foreign Labor Certification

The employer must first obtain a Labor Certification from the United States Department of Labor (USDOL) certifying that there are insufficient U.S. workers to accept the job offered to the foreign employee, and that the employment of the foreign employee will not adversely affect the wages and working conditions of similarly employed U.S. workers. In order to obtain a Labor Certification, the U.S. employer must advertise the job being offered to the foreign employee, and demonstrate that there are no U.S. workers possessing the applicable minimum qualifications, or who are willing to accept the job.

*A beneficiary (foreign employee) of a Labor Certification filing made 365 days prior to the end of the sixth year of H-1B status, is eligible to extend the H-1B status beyond the standard maximum time of 6 years.

STEP 2: I-140 Petition for Alien Worker

After the Labor Certification is certified, the employer files Form I-140 to the USCIS. The employer must demonstrate that: 1) the foreign employee possesses the minimum qualifications for the offered position as listed in the Labor Certification; and 2) it has had the ability to pay the Prevailing Wage or Offered Wage, whichever is higher, since the filing of the Labor Certification. In order to prove the ability to pay, the employer must show that one of the following exceeds the Prevailing Wage or Offered Wage, whichever is higher:

  • Company’s Net Current Asset;
  • Company’s Net Income; or
  • The foreign employee’s actual wage paid by the company.

Important Notes:

  • The U.S. employer must submit a Form I-140 form within 180 days of the Labor Certification’s issuance. 
  • Once the I-140 petition is approved, the foreign employee becomes eligible for H-1B extensions in increments of 3 years, beyond the standard 6-year limit on H-1B visa duration.
  • An approved I-140 petition does not in itself grant work authorization. The foreign employee must maintain a nonimmigrant work visa status until the foreign employee receives other appropriate employment authorization.
  • An approved I-140 petition does not in itself grant authorized stay. In order to lawfully remain in the U.S., the foreign employee must maintain valid nonimmigrant status until the I-485 Application for Adjustment of Status is properly filed with the USCIS. Once the application to Adjust Status is properly filed and received by the USCIS, the foreign employee may legally stay in the U.S. based on a pending Adjustment of Status application. However, maintaining the validity of the underlying visa is recommended, as it can serve as a backup in the event that the application for Adjustment of Status is denied.
  • An approved Labor Certification application is specific to the petitioning employer and the designated foreign employee, and cannot be transferred between employers or beneficiaries.

STEP 3: I-485 Application to Adjust Status or Consular Processing

Adjustment of Status

Eligible applicants may file Form I-485 Application to Adjust Status from nonimmigrant to immigrant status (permanent resident) without having to leave the U.S. In order to be eligible for Adjustment of Status, the applicant(s) – the foreign employee and any dependent(s) – must be legally present in the U.S. and must not have accumulated more than 180 days of unauthorized stay or unauthorized employment. Once the application for Adjustment of Status is filed with the USCIS, the applicant(s) can legally remain in the U.S. until a decision is made for the application. Applications for Employment Authorization Document and Advance Parole (permission to travel abroad) may be filed concurrently with or after filing the application to adjust status.

*If the Adjustment of Status application has been pending for more than 180 days, the foreign employee may accept a position with a different employer, but the new position must be in the same or similar occupational classification as the position for which the Green Card application was initially filed.

Consular Processing

Applicants residing outside of the U.S., or who do not qualify for Adjustment of Status, must be interviewed at a U.S. Embassy or Consulate in the country of their residence, and must complete the pertinent visa processing to enter the U.S. as a permanent resident.

Eligibility for Filing Adjustment of Status or Begin Consular Processing

The U.S. Government limits the number of visas available for employment-based immigrant preference categories, and allocates them according to the prospective immigrant’s preference category and country of birth. Therefore, countries with more applicants (e.g. China, India) have a long wait before their applicants can apply for Adjustment of Status or begin Consular Processing. The application of Adjustment of Status or Consular Processing can only be filed when the applicant’s priority date (date the Labor Certification application was accepted for processing by the DOL) is earlier than the date specified on the Visa Bulletin chart that corresponds to the applicant’s preference category and country of birth.

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