Updated November 3, 2020:

What Is an Employment-Based Green Card?

An employment-based green card is a document that gives legal permission for a foreign national to live and work in the United States. Other than family-based, employment is the most common route by which a foreign national can obtain a green card.

A foreign national can get an employment-based green card if they are sponsored by an employer for a position within the United States. The foreign national may be living abroad or already in the United States on a nonimmigrant visa, such as an H1B or a student visa. However, the employer must try to fill the position with a current green card holder or U.S. citizen before hiring a foreign national.

The employment-based green card application process is quite lengthy, detailed, and complicated. It involves receiving approval from the Department of Labor, United States Citizenship and Immigration Services, and the Department of State.

What Is the Process for Getting an Employment-Based Green Card?

If a foreign national successfully applies for a green card, then their spouse and children under the age of 21 are also entitled to receive a green card. Employment-based green card applications are ultimately approved by the United States Citizenship and Immigration Services.

However, the first step is to receive labor certification for most industries. Employers must file an Application for Permanent Employment Certification (ETA Form 9089) with the Department of Labor. This is to demonstrate that no eligible or qualified permanent resident or U.S. citizen was available for the position being filled.

Employers must also verify that standard wages are being offered for the position from the State Workforce Agency where the position is located, prior to receiving labor certification from the Department of Labor. Also, the employer must have documentation for their recruitment efforts to fill the position with a permanent resident or U.S. citizen. This includes

  • job listings in newspapers
  • ads in industry journals
  • any state job lists

The employment-based green card application process cannot begin without receiving labor certification.

In addition to these requirements, employers are also asked to

  • document combined occupations if necessary
  • submit foreign language requirements for the position
  • list alternative experience requirements
  • provide actual minimum requirements
  • list conditions of employment for live-in workers
  • provide evidence that opportunity was given to laid-off workers in the area
  • submit documentation if the alien worker has a financial stake in the company directly or indirectly
  • provide documentation of any audit requests
  • submit application records for the past five years

It typically takes two to three months for labor certification applications to be filed, although the duration can increase in case of audits. If the application is denied, the decision can be repealed and brought to the Board of Alien Labor Certification Appeals.

If the labor certification is approved by the Department of Labor, then form I-140 (Immigrant Petition for Alien Workers) can be filed and submitted to the United States Citizenship and Immigration Services. If this form is approved, then the foreign national will receive an immigrant visa number from the Department of State.

Depending on the foreign national’s country of origin, the wait time for a visa can differ by a large amount. Countries with many applicants can lead to months of delay, while countries with few applicants can receive their visas immediately. The timeline can also be longer if the foreign national is living abroad rather than in the United States.

Once the visa becomes available the applicant files Form I-485 (Green Card Application,) which is the final step in the green card process. If the applicant is in the United States there is an interview with the United States Citizenship and Immigration Services. Along with Form I-485, the applicant can also file their Employment Authorization Document and Advanced Parole or Travel Document. Applicants outside of the United States can go through Consular Processing, with the interview taking place at the nearest U.S. Consulate in the applicant’s native country.

Is There a Quota for Getting an Employment-Based Green Card?

Every year, 140,000 employment-based green cards are awarded. 9,800 are allocated to every country, regardless of the number of applicants or the country’s total population.

Employment-Based Green Card Categories

EB-1 Priority Workers

EB-1 priority workers include persons of extraordinary abilities in the fields of science, art, education, business, sports, or athletics. It also includes outstanding professors or researchers. This entails giving priority to internationally recognized individuals who contributed to innovations in their field of study. EB-1 also gives preference to managers and executives of multinational corporations.

EB-1 has a quota of 28.6 percent of total employment-based immigration. Thus, each country has an allocation equivalent of roughly 2,800 individuals annually. EB-1 is the first choice for applicants due to it being given first preference. However, there is a great deal of scrutiny of applicants in this category.

EB-2 Professionals With Advanced Degrees or Persons With Exceptional Ability

The next category is EB-2, which gives preference to foreign nationals with above-average skills who have the potential to benefit the national interest from an educational or cultural standpoint. It also includes people with extraordinary ability in the science, art, or business fields based on achievements or peer recognition. EB-2 also includes professionals with advanced degrees and five years of work experience. Physicians who are going to practice medicine in the U.S. in an underserved area also count under EB-2.

EB-2 has the same quota of 28.6 percent, which is equivalent to 2,802 people per country.

EB-3 Skilled or Professional Workers

EB-3 includes skilled workers with a minimum of two years of training or experience, and foreign nationals with an undergraduate degree or vocational training. It also includes unskilled workers with experience that is not readily available in the United States.

EB-3 has the same quota of 28.6 percent of workers. Given that the requirements for EB-3 are less stringent, it has the most number of applicants and is quite competitive, especially for countries with large populations. By the same measure, employers are less apt to file for EB-3 workers, because these positions are more likely to be filled by domestic workers given the lack of specialized training among applicants.

EB-4 Special Immigrants

Some of the groups that qualify for EB-4 are religious workers who are affiliated with a nonprofit organization in the United States, employees and former employees of the United States government abroad, and people who worked as translators with the United States Armed Forces in Iraq or Afghanistan.

The quota for EB-4 is 7.1 percent of total employment-based immigration, which amounts to every country having an allocation of 695 people.

EB-5 Investors (Employment Creation)

EB-5 is geared towards foreign nationals who are investors and entrepreneurs, and who intend to invest more than $1,000,000 and create 10 new full-time jobs in the United States. In certain situations, this amount has been revised to $500,000 and five full-time jobs.

The quota for EB-5 is 7.1 percent of total employment-based immigration, which amounts to 695 people per country.

If you need help with an employment-based green card application, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.