Employment-Based Visas

Permanent residence through employment

Employment-based immigrant visas are one of three statutory paths to lawful permanent residence under the Immigration and Nationality Act. Section 203(b) of the INA sets out five preference categories. Four of them — EB-1, EB-2, EB-3, and EB-5 — are the ones most people mean when they say "employment-based green card." I handle EB-1, EB-2 with and without a National Interest Waiver, and EB-3. I do not handle EB-5 investor cases; those require dedicated investment-vehicle structuring and are best handled by firms that focus on that work.

Alongside the employment-based immigrant visas, there are two specialty non-immigrant work visas I handle in the same practice: the O-1 extraordinary-ability visa and the L-1 intracompany transfer. These are temporary work visas, not green cards, but for many of my clients they are the way into the United States and the foundation for a later EB-1 or EB-2 NIW petition.

The three things you need

When clients call me about an employment-based case, I tell them the same three things every time. To eventually adjust status to that of a lawful permanent resident through employment, you need:

1. Lawful entry. You went through immigration at a U.S. port of entry, presented your passport, and were admitted. This is the same requirement as in any other adjustment of status case.
2. An approved or approvable employment-based petition with an available visa number. For most categories that is the I-140 Immigrant Petition for Alien Worker, with the priority date current under the monthly Visa Bulletin.
3. Eligibility for adjustment with good moral character — and lawful status maintained the entire time you are waiting. For employment-based cases this third requirement is the one that catches the most people: priority dates can take years to become current, and you have to remain in lawful nonimmigrant status throughout.

That framework is the same for every employment-based category I handle. What differs is the kind of petition, who can file it, and whether labor certification is required first.

EB-1 — extraordinary ability, outstanding researchers, multinational executives

EB-1 is the first preference category. It is for foreign nationals who fall into one of three sub-classifications, and unlike EB-2 (without a NIW) and EB-3, an EB-1 petition can be self-filed and does not require a labor certification.

EB-1A — Extraordinary Ability

For foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics. The petitioner has to demonstrate sustained national or international acclaim and meet at least three of ten regulatory criteria — major awards, membership in associations requiring outstanding achievement, published material about the petitioner, judging the work of others, original contributions of major significance, scholarly articles, exhibitions, leading or critical roles, high salary, or commercial success in the performing arts. The petition is self-filed; no employer sponsor is required.

USCIS estimates that 80% of EB-1 petitions for outstanding professors or researchers are being processed in 19 months; for a multinational executive or manager, 24 months. Visa Bulletin priority dates for EB-1 are currently being processed for petitions received on or before October 15, 2024, so cases approved now generally have visas available.

EB-1B — Outstanding Professors and Researchers

For internationally recognized professors and researchers with at least three years of experience in their field, who have a tenure-track or comparable permanent research position with a U.S. employer. Two of six regulatory criteria must be met. Unlike EB-1A, EB-1B requires an employer sponsor, but no labor certification.

EB-1C — Multinational Executives and Managers

For executives or managers who have been employed abroad by a qualifying organization for at least one of the three years preceding entry, and who are being transferred to a U.S. employer that is the same employer or an affiliate or subsidiary. EB-1C is the immigrant-visa companion to the L-1A non-immigrant visa described below — many L-1A transferees eventually pursue EB-1C to remain permanently.

EB-2 — advanced degree, exceptional ability, and the National Interest Waiver

EB-2 is the second preference category. It is for foreign nationals who hold an advanced degree or its equivalent, or who have exceptional ability in the sciences, arts, or business. Standard EB-2 cases require a U.S. employer to first obtain a labor certification from the Department of Labor.

The National Interest Waiver

The National Interest Waiver is the EB-2 path that does not require labor certification or an employer sponsor. The petitioner self-files the I-140 and asks USCIS to waive the labor-certification requirement on the ground that the proposed endeavor is in the national interest of the United States.

The standard for granting a NIW comes from Matter of Dhanasar (AAO, 2016). The petitioner has to show:

• The proposed endeavor has both substantial merit and national importance,
• The petitioner is well-positioned to advance the proposed endeavor, and
• On balance, it would be beneficial to the United States to waive the labor-certification requirement.

NIW petitions are common for STEM researchers, entrepreneurs in critical industries, healthcare professionals serving underserved populations, and academics whose work has clear national-interest implications. USCIS estimates that 80% of EB-2 petitions for exceptional ability with a NIW are being processed in 3.5 months — the fastest of any employment-based category.

EB-3 — skilled workers, professionals, other workers

EB-3 is the third preference category. It covers:

• Skilled workers — positions requiring at least two years of training or experience,
• Professionals — positions requiring a U.S. bachelor's degree or its foreign equivalent, and
• Unskilled workers — positions requiring less than two years of training or experience.

EB-3 cases require the employer to first obtain a labor certification from the Department of Labor. That process is described below.

Visa Bulletin priority dates for EB-3 Skilled and Unskilled Worker visas are currently being processed for priority dates of October 1, 2023 and earlier. USCIS estimates that 80% of EB-3 petitions for alien workers filed by employers are being processed in five months once the labor certification issues.

The Labor Certification (PERM) process

EB-2 without a NIW and EB-3 both require the employer to first obtain a labor certification (PERM) from the Department of Labor. The process is in three steps before you even get to USCIS:

• Prevailing wage determination. Identifying the job, the appropriate Standard Occupational Classification code, and the prevailing wage for that job in the geographic area where the employee will work — adjusted for the level of supervision required.
• Recruitment. Sufficient recruitment efforts to demonstrate to the Department of Labor that no otherwise-qualified U.S. workers were unfairly prevented from applying for the job. The Department can call for an audit if it is not convinced of the recruitment efforts and then conduct its own — although I have never had a case audited.
• Labor certification, then the I-140, then the I-485. Once the labor certification issues, the employer files the I-140 Immigrant Petition. When that is approved and the priority date is current, the foreign national can file for adjustment of status.

It takes about 17 months to complete the labor-certification process. Adding the I-140 processing time and the wait for visa availability, an EB-2 or EB-3 case requiring labor certification can run several years end to end. This is why maintaining lawful status throughout the wait is so important.

O-1 — extraordinary-ability non-immigrant visa

The O-1 is a non-immigrant visa for foreign nationals with extraordinary ability — the same statutory standard as the EB-1A immigrant visa, applied to a temporary stay. The two O-1 sub-classifications are:

• O-1A — extraordinary ability in the sciences, education, business, or athletics. The petitioner has to demonstrate sustained national or international acclaim and meet at least three of eight regulatory criteria.
• O-1B — extraordinary ability in the arts, or extraordinary achievement in the motion picture or television industry. Different criteria, similar evidentiary standard.

The O-1 is granted for an initial three years and can be renewed in one-year increments. It allows the holder to work in the qualifying activity for a specific U.S. petitioner. Many of my clients begin with an O-1 to enter and work legally, then pursue the EB-1A as the path to lawful permanent residence. The criteria overlap heavily, and a strong O-1 record often supports a strong EB-1A petition later.

L-1 — intracompany transfer

The L-1 is the non-immigrant visa for foreign nationals being transferred from a qualifying foreign company to a U.S. parent, affiliate, or subsidiary. The petitioner has to have been employed by the foreign entity for at least one continuous year out of the three years preceding the transfer. The L-1 has two sub-classifications:

• L-1A — for executives and managers. Granted for an initial three years (or one year for a new office) and renewable up to a maximum of seven years.
• L-1B — for employees with specialized knowledge of the company's product, service, research, equipment, techniques, or management. Granted for an initial three years and renewable up to a maximum of five years.

Large employers with regular transfer activity can apply for an L-1 blanket petition, which lets qualifying employees apply for L-1 status directly at a U.S. Consulate rather than going through individual I-129 petitions. For smaller employers and individual transfers, the standard I-129 path is used.

L-1A transferees often pursue the EB-1C immigrant visa to remain permanently — the criteria for the two are closely aligned, so a strong L-1A approval frequently leads to a strong EB-1C petition.

Maintaining status while you wait

This is the piece that catches the most people in employment-based cases. Priority dates can take years to become current. You have to maintain lawful nonimmigrant status the entire time you are waiting. If your status lapses, you can lose the ability to adjust here and may have to consular process abroad instead.

What being in good status looks like in practice for an employment-based applicant:

• If you are on an L-1 or O-1, you maintain status by remaining employed in the qualifying capacity and renewing as needed.
• If you change jobs during the wait, AC21 portability allows EB-2 and EB-3 beneficiaries whose I-485 has been pending more than 180 days to change to a same-or-similar position without restarting the petition — but the rules are technical and the timing matters.
• If you have a child who is aging out of derivative-beneficiary status as the case sits, the Child Status Protection Act may freeze their age at the time the petition was filed — again, technical, and the analysis depends on the specific timeline.
• If you are abroad during the wait, you are consular-processing rather than adjusting status. That path is described on the Adjustment of Status page.

The two work-visa categories outside my practice — H-1B and H-2B

I do not handle H-1B specialty-occupation petitions or H-2B seasonal-worker petitions. Those filings — including the H-1B lottery, cap-exempt cases, employer compliance, LCA filing, and H-2B agricultural/hospitality work — are best handled by firms that focus on employer-side temporary-worker visas. If you need H-1B or H-2B counsel I can refer you. Every other employment-based path is within my practice.