Certain employment-based green card classifications do not require a PERM Labor Certification, which generally allows for a much quicker process, especially under the EB-1 preference category which usually is not backlogged for any country of chargeability. There is also a sub-class of the EB-2 preference category that does not require a PERM Labor Certification, referred to as a National Interest Waiver (NIW).
Step 1: I-140 Immigrant Petition
EB-1 or NIW eligibility is established through the I-140 filing, which is step 1 of the employment-based green card process in situations where a PERM Labor Certification is not required. With three sub-classes of the EB-1 category in addition to the NIW, there are ultimately four ways to file an I-140 petition without a PERM Labor Certification. Individuals may self-petition under EB-1A or NIW, all other employment-based preference categories require a job offer and employer-sponsored immigrant petition.
- EB-1A – Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. The I-140 Immigrant Petition may be filed by a prospective U.S. employer or self-petitioned by the applicant. The criteria to qualify for EB-1A classification is outlined in further detail here.
- EB-1B – Outstanding professors and researchers with at least three years of qualifying research or teaching experience, who are recognized internationally. Applicants in this category must be seeking a tenure track teaching or a comparable research position at a qualifying research organization. The prospective employer must provide a job offer and file an I-140 Immigrant Petition for Alien Worker with USCIS on the foreign national’s behalf. The criteria to qualify for EB-1B classification is outlined in further detail here.
- EB-1C – Multinational managers or executives who have been employed for at least one of the three preceding years by an overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be seeking to work in a managerial or executive capacity in the United States. The prospective employer must provide a job offer and file an I-140 Immigrant Petition with the USCIS on the foreign national’s behalf.
- EB-2 Based on National Interest Waiver (NIW) – Individuals holding an advanced degree or exceptional ability seeking a national interest waiver must demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The proposed endeavor must have substantial merit and national importance; the person must be well positioned to advance the endeavor; and it must be beneficial to the U.S. to waive the PERM Labor Certification requirements. The criteria to qualify for a National Interest Waiver is outlined in further detail here.
Since a PERM Labor Certification is not required for the preference categories described above, the applicant’s priority date will ultimately be the date on which the I-140 petition is filed. If the applicant has a previously established priority date from a prior I-140 filing, they will retain that date on any subsequent I-140 approvals.
Since the EB-1 preference category is typically free of an immigrant backlog, most applicants will be eligible to file an I-485 Application to Adjust Status concurrently with the EB-1 I-140 petition (i.e., file steps 1 and 2 with USCIS at the same time), if they are lawfully present in the U.S. and opt for an adjustment of status versus consular processing of an immigrant visa.
If the applicant is subject to an immigrant backlog (because of their country of birth under EB-2 or in rare, usually temporary, instances of an EB-1 backlog), they will be eligible to proceed with step 2 below once their priority date is current under the applicable preference category and country of chargeability in the Department of State Visa Bulletin.
Step 2: Adjustment of Status or Consular Processing of Immigrant Visa
This step ultimately looks the same, regardless of the applicant’s preference category and whether a PERM Labor Certification was required as part of their immigrant sponsorship. In all cases, the actual green card application can be filed with USCIS as an adjustment of status (Form I-485) or completed via consular processing at a U.S. consulate or embassy outside of the United States. This stage of the process is to determine the foreign national’s eligibility for permanent residency (i.e., no serious criminal record, status violations, threats to national security, etc.).
In order to file an Adjustment of Status (“AOS) application with USCIS (Form I-485), the foreign national must be lawfully present in the U.S. at time of filing. As a benefit of filing an AOS application, the foreign national will also be able to file I-765 and I-131 applications for an Employment Authorization Document (“EAD”) and Advance Parole (“AP”), which serves as a work and travel permit (ultimately issued as a combined EAD/AP card) while the green card is pending.
As an alternative to filing an I-485 Application to Adjust Status with USCIS, the foreign national can apply for an immigrant visa through the U.S. consulate in their home country. Consular processing does not allow for an EAD/AP card.
The decision to adjust status or consular process is entered on the Form I-140 (Step 2 above). This election may be changed after the filing of the I-140 petition but doing so may cause processing delays or additional fees, so foreign nationals should give careful consideration to which path is best for them.