Employment and Family Based Permanent Residency

Immigration laws in the United States reflect the high value Americans place on keeping families together. For that reason, there is no limit to the number of immediate family relatives of United States’ citizens who can receive immigrant visa numbers for permanent residence status. Immediate family members include spouses, children, and parents (if sponsoring child is 21 or older). Family members who are not immediate relatives may have to wait a long time to receive an immigrant visa number. Family members are placed in different categories based on the relationship to the U.S. citizen or permanent resident. As you compare the categories listed below, you will notice that relatives of U.S. citizens are typically considered a higher preference category than relatives of lawful permanent residents. There are different limits for each category of family member and, as with all visa categories; no single country can have more than 7% of all the visas in one category.

The current waiting period for most first preference family members is about five years, unless an individual is from Mexico, and then the wait is about 14 years due to the high demand of family members from Mexico applying for permanent resident status. Below is a chart listing which family members are in each preference category along with the limit of visas granted in a fiscal year.

Categories of Preference (Following Refer to Applicant)

Family First Preference:

Unmarried children of U.S. citizens (who are 21 years or older: single means divorced, widowed or never married)

23,400 immigrant visas are available for this preference

Family Second Preference:

Spouses and unmarried children of Permanent Residents

Spouses and unmarried children under age 21 are category 2A

Unmarried children over age 21 are category 2B and may have a longer wait than those in 2A

A total of 114,200 immigrant visas are given in a fiscal year with 77% designated as category 2A with the intention that spouses and minor children arrive faster than older unmarried children

Family Third Preference

Married children of U.S. citizens

Only 23,400 visas are available in this category which tends to have a long wait

Family Fourth Preference

Siblings of U.S. Citizens

The U.S. Citizen has to wait until s/he turns 21 years old before a petition can be filed on behalf of a sibling

65,000 visas are available for this category and the wait tends to be very long because of the large number of applicants

The fiscal year begins October 1 and ends on September 30. Every year on October 1st, the count starts at zero for each category and for each country. After October 1, as soon as a country reaches 7% of the total available visa numbers, no more immigrant visa numbers can be given to people charged to that country. Likewise, when the limit has been met for any given category, no more visa numbers will be given in that category for the rest of the fiscal year.

The Department of State issues a visa bulletin each month which announces the priority date for each category currently eligible for visa numbers. The priority date is the date the U.S. citizen or U.S. permanent resident filed a petition on behalf of the family member.

Green Card Through Employment

Employment based green cards are not available to all people who find employment in the United States. The employment green card is only available to people who have extraordinary skills or are highly educated in their fields. Foreign nationals wishing to work in the United States must also essentially prove to be more qualified than any U.S. workers who would want the same job. While there is an employment-based visa category for unskilled workers, the wait can be very long and most employers would not be willing to wait to fill those positions.

An employer plays the key role in the process of getting a green card through employment. The employer is essentially making the request to the United States immigration officials to allow the immigrant status in order to bring their employee to work for them.

The concern that foreigners might take jobs away from U.S. workers is a driving force in the creation of the process by which employers bring foreigners to the United States to work. Employers are held to a high standard to prove they tried to find a U.S. worker before offering the position to a foreigner. The burden is on the employer, and not the employee, but the employee must prove him/herself worthy of the employer’s efforts when applying for the position in the United States.

The issue of giving jobs to foreigners is so sensitive that U.S. immigration officials will scrutinize all employer job descriptions to assure they are not written with the intent of blocking out U.S. workers. The employer will have to provide evidence that he advertised the job and conducted interviews and was still unable to fill the position with a qualified U.S. worker, before offering the position to a foreigner.

Stages of Application

Most non-immigrants seeking a green card through employment will do so following these three stages:

Step 1: Labor Certification Application.

The immigrant’s employer must file an application with the U.S. Department of Labor to request the green card on behalf of the non-immigrant. The application will describe the responsibilities of the job and qualifications needed by the employer. The employer must prove two conditions before a labor certification will be granted:

1) There are no U.S. workers in the area where the job exists, who are available, willing, and able to fill the position; and

(2) The individual’s employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers.

Step 2: Immigrant Petition (Form I-140)

When the application is approved, the employer has to file an immigrant petition with the U.S. Immigration and Naturalization Service (USCIS). While the labor certification application assures the United States government that there are no qualified U.S. workers in the area of the job, the immigrant petition is the request by the employer to hire a specific non-U.S. citizen for the job.

Step 3: Adjustment of Status (Form I-485)

After an immigrant petition is approved and an immigrant number has been issued, the employee can apply for adjustment of status as permanent resident for him/herself and his/her immediate relatives. As with all applicants for permanent residence status, the petition may be approved before the immigrant visa number is available. The application Form I-485 cannot be completed until an immigrant visa number has been issued to the employee.

Waiver of Sponsor Requirement

While generally, applicants for a visa based on employment or professional skills must have a job offer or an approval from the U.S. Department of Labor through the Labor Certification Application, the requirements can be waived if a person can show her/his work is of national interest such as:

  • Improving the U.S. economy Improving wages and working conditions for U.S. workers
  • Improving education and programs for U.S. children and under qualified workers
  • Improving health care
  • Improving the U.S. environment and making more productive use of natural resources

Categories of Preference

There are five categories of employment-based visas and there are a limited number of visas available for each category each year. The categories are as follows:

Employment First Preference (EB-1) Priority workers

Workers of extraordinary ability

Transferring executive or managers of large corporations

Nationally recognized outstanding university professors or researchers who have at three years experience in a given field

Nationally recognized achievements in science, art, education, business or athletics

Employment Second Preference (EB-2) Worker with advanced degrees of exceptional ability

Must be coming to the United States to work in field of expertise

Must have a definite job offer from a U.S. employer unless can prove presence will benefit the United States

Entry must benefit the economic, educational, or cultural interests of the United States

Must hold post-graduate degrees in order to get a green card (unlike getting a temporary visa which only requires a bachelor’s degree). Five years of more of experience can be substituted for the advanced degree.

Do not need to be nationally recognized to meet this standard as with EB-1

Employment Third Preference (EB-3) Skilled or unskilled workers without advanced degrees

Only 10,000 of the available 40,000 visas allotted for this category are available to unskilled workers

Professional workers have a degree and/or license to perform the occupation in which they work. Some examples would be lawyers, accountants, physicians or engineers

Skilled workers do not require college degrees but do need at least two years of training. Some examples would be chefs, construction supervisors, or journalists.

Unskilled workers include jobs requiring less than two years of training such as nannies, housekeepers, or farm workers.

Employment Fourth Preference Category (EB-4) Special Immigrants

(Discussed in detail below)

Miscellaneous categories of people who can apply for visas—most of which are related to employment

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