An employment-based green card grants permanent residence based on a U.S. job offer or exceptional qualifications. In the EB-2 and EB-3 categories, the employer usually obtains PERM labor certification from the Department of Labor, files Form I-140 with USCIS, and the worker finishes through adjustment of status or consular processing.
The first call usually comes from one of two people. One is a contractor in Maspeth who has relied on the same foreman for years and cannot picture a busy season without him. The other is a worker whose boss said, “We’ll get you a green card,” and who has no idea what that actually involves. They want the same outcome, but the law gives them very different roles.
Immigration law calls this path employment-based immigration. It is federal law, so the rules are the same in Manhattan, New Jersey or Chicago. Congress caps the number of employment-based green cards each year, which is why choosing the right category and taking the steps in the right order matter. What follows is a general overview; the details always depend on the specific job offer and the worker’s immigration history.
Which employment-based categories exist?
USCIS sorts employment-based green cards into five preference categories. EB-1 covers people with extraordinary ability in the sciences, arts, education, business or athletics, outstanding professors and researchers, and certain multinational executives and managers. EB-2 covers members of the professions holding advanced degrees and people with exceptional ability. EB-3 covers professionals, skilled workers and “other workers.”
EB-4 is reserved for special immigrants, including certain religious workers and retired employees of international organizations. EB-5 is for investors who put capital into a new commercial enterprise that creates U.S. jobs. The required investment amounts have changed in recent years, so check the current thresholds directly with USCIS. The USCIS Permanent Workers page describes all five categories.
The category determines whether you need a job offer and labor certification. According to USCIS, EB-1, EB-4 and EB-5 do not require labor certification; EB-2 can skip it through a National Interest Waiver; EB-3 generally requires it. A person of extraordinary ability (EB-1A) can also self-petition, with no sponsoring employer.
Employment-based immigration is not only about green cards. Many people start on a temporary work visa such as L, O, P or E, which we cover in our guide to nonimmigrant visas. The H-1B visa for specialty occupations follows its own rules and has a separate H-1B guide.
How does the process work, step by step?
In categories that require it, step one is PERM labor certification from the U.S. Department of Labor (DOL). The employer files Form ETA-9089. DOL must certify that there are not enough U.S. workers who are able, willing, qualified and available for the job, and that hiring a foreign worker will not hurt the wages and working conditions of similarly employed U.S. workers.
One point worth knowing: the Department of Labor states that filing is the employer’s responsibility, not the employee’s. Before filing, the employer obtains the prevailing wage for the position and completes the required recruitment in the U.S. labor market. Only an approved certification opens the door to the next stage.
Step two is Form I-140, the Immigrant Petition for Alien Worker, filed with USCIS. The employer shows that the worker meets the job and category requirements and that the business can pay the offered wage. The labor certification filing date, or the I-140 filing date when no certification is needed, usually becomes the priority date: the worker’s place in line.
Step three depends on where the worker is. Once a visa number is available under the State Department’s monthly Visa Bulletin, someone lawfully in the U.S. may in some cases apply to adjust status on Form I-485. Someone abroad goes through consular processing and enters the U.S. as a permanent resident on an immigrant visa. Sponsorship from abroad is possible even if the worker has never worked for that employer.
What drives the cost and the wait?
The total cost combines government filing fees, recruitment expenses for PERM and attorney fees. USCIS fees change, so we do not list amounts here; the agency posts its current fee schedule and fee calculator on uscis.gov. Department of Labor rules govern which costs the employer must cover, and that question is worth settling at the very start.
The wait depends mainly on the category and the worker’s country of birth. The Visa Bulletin shows visa availability: some categories move steadily, others barely move for months. Processing times at DOL and USCIS add to that and also change. Bottom line: no responsible lawyer will promise a green card by a specific date.
The quality of the first filing affects both cost and time. A vague job description, a mismatch between the offer and the worker’s experience, or missing financial records can lead to a Request for Evidence or a denial. Every extra round means more weeks and more work for both sides.
To talk through the right category and next steps, call: 212-227-8020
Sponsorship at small businesses in New York and New Jersey
Sponsorship questions come up at family-run construction and renovation companies in Greenpoint and Ridgewood, in restaurants, in home care and at trucking outfits across the Hudson in New Jersey. These are often tight crews where the owner has known the worker for years and wants to keep that person on.
A small business carries the same obligations as a large corporation. It must show it can pay the offered wage, complete each certification step and stick to the job description. For an owner who keeps the books informally, pulling together financial documentation is often the hardest part. That is where things get complicated.
The worker’s immigration history is the other real issue. Someone who once overstayed or worked without authorization may hit obstacles at the adjustment or consular stage. In that case it makes sense to assess whether a waiver of inadmissibility is available before the employer invests time in labor certification.
Foreign documents matter too. Work experience is proven with letters from former employers, and diplomas or letters in Polish or any other language need English translations. Being able to explain a past job in your own language helps describe the real scope of your duties, which can become the backbone of the whole petition.
What is it like to work with John Nicelli & Associates?
- Experience in immigration law. Employment-based cases run through both the Department of Labor and USCIS. John A. Nicelli, Esq. has practiced immigration law for more than 30 years, and the firm has served clients since 1985. Bring the job offer and the job description to the first conversation.
- A language you are comfortable in. Job duties, education and past stays are easier to explain in the language you think in. The firm consults in English, Polish, Spanish and Portuguese, which reduces the risk of misunderstandings about the job description and experience.
- Current knowledge of the rules. Immigration rules, forms and fees change regularly. John A. Nicelli has been a member of the American Immigration Lawyers Association (AILA) for more than 30 years.
- Flexible ways to meet. A business owner and a worker on a job site rarely have a free morning. The firm offers consultations in person, by phone and by video, which makes each stage easier to manage.
- An individual assessment, not promises. The category is chosen only after the documents and the worker’s history have been reviewed. No one can guarantee a date or an outcome, so bring diplomas, employment records and documents from any earlier stays in the U.S.
More about John Nicelli & Associates — see the firm’s profile and full range of immigration matters.
Common mistakes, and what to do after an I-140 denial
The first mistake is treating a verbal promise as a case in progress. Until a labor certification or petition is filed, there is no priority date. The second is a job description written “aspirationally” that does not match what the worker actually does or can document. The third is leaving experience letters from abroad until the last minute.
Sound familiar? Midway through the process, the worker gets a better offer, changes jobs and only then asks what happens to the case. A change of employer or position can affect the labor certification and the petition, so talk it over with John Nicelli & Associates before signing anything new. The same goes for an employer planning to sell or restructure the business.
An I-140 denial does not always end the case. USCIS usually explains the reasons in the decision. If the problem can be fixed, the employer can file a new, corrected petition; a formal appeal or motion goes on Form I-290B within a short deadline counted from the decision. The right path depends on why the petition was denied, so decide quickly.
An employment-based green card takes patience, and the employer and the worker are on the same team. The more carefully the first filing is prepared, the fewer surprises later, and the better the odds that years of work for the business turn into permanent status.
Before the first consultation, gather the job offer or job description, a résumé with full employment history, diplomas and experience letters with translations, your passport and records of your stays in the U.S. The firm’s employment immigration page (in Polish) outlines the matters it handles.
To discuss your situation with John Nicelli & Associates, call: 212-227-8020
Every case requires an individual assessment — please contact John Nicelli & Associates about your situation. This article is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome. Attorney advertising.
