Ordinarily, in order to apply for and obtain an immigrant visa and permanent resident status ("green card"), you need a petitioner (although there are several exceptions to this general rule). The petitioner can be either your U.S. employer (employment-based) or your U.S. citizen or permanent resident family member (family-based). But not every employer or family member can be a petitioner; only those employers and family members that fit one of the specific categories set out by the immigration law can file a petition for you. And you also have to meet various requirements under that category.
Employment-based Categories ("Preferences")
There are 5 broad categories ("preferences") under employment-based immigration. Here are general descriptions (for details, please select a specific preference from the menu on the left):
EB-1: For persons of extraordinary ability in sciences, arts, education, business, or athletics; for outstanding professors or researchers; for multinational executives and managers.
EB-2: For persons who are members of the professions holding advanced degrees; for persons with exceptional ability in arts, sciences, or business.
EB-3: For professionals, skilled workers, and other workers (unskilled workers).
EB-4: For “special immigrants”, including religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the U.S., and other classes of aliens.
EB-5: For business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Steps
In the big picture, an employment-based immigration process consists of the following steps:
1. Obtaining LC through PERM: Required for EB-2 and EB-3
First, your U.S. employer must apply for and obtain an LC (Labor Certification) from the U.S. DOL (Department of Labor) through an electronic system called PERM (Program Electronic Review Management). In order to request an LC, your employer must first test the job market by posting job ads and attempting to recruit U.S. workers, and show DOL that:
----- There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage; and
----- Hiring a foreign worker (you) will not adversely affect the wages and working conditions of similarly employed U.S. workers.
This PERM step usually takes 10-18 months.
2. Filing I-140 Petition:
Next, your U.S. employer must file a Form I-140, Immigrant Petition for Alien Worker, along with proper supporting documents, with USCIS. It takes 2-8 months for USCIS to review the petition and make a decision.
3. Waiting Time until Priority Date becomes Current:
Each employment-based preference has a set annual quota, totaling 140,000 per year. Depending on which preference you fall under, the number of cases filed before yours may be exceeding the quota for that preference, in which case you have to wait in line until it is your turn to proceed with the next step (immigrant visa application or I-485 application). Each case is given a "priority date" that determines its place in queue; your "priority date" is either:
----- The date the LC application was accepted for processing by DOL (if an LC is required); or
----- The date the I-140 petition was properly filed with USCIS (if an LC is not required).
When your priority date becomes "current", it means you can proceed with the next step. In order to check each preference's priority date that is soon becoming current, please visit the Department of State's monthly visa bulletin: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. Please note that 4 countries (China mainland, India, Mexico, and Philippines) have their own respective quota and thus their own respective priority date. Also note that how fast/slow a priority date advances (or sometimes even retrogresses) can often change depending on how many cases are being filed at the time.
4. Immigrant Visa Application, or I-485 Application to Adjust Status:
Once your priority date becomes current, you can now:
----- Apply for an immigrant visa at a U.S. Embassy/Consulate (if you are outside the U.S.); or
----- File a Form I-485, Application to Adjust Status, with USCIS (if you are in the U.S. in lawful status).
At the time your employer is filing an I-140 petition (Step 2), if your priority date is current AND if you are in the U.S. in lawful status, you can file your I-485 application (Step 4) at the same time with the I-140 petition (concurrent filing).
Your dependents (spouse; unmarried children who are under 21 when the I-140 petition is approved or your priority date becomes current, whichever is later) can also file immigrant visa applications or I-485 applications to adjust status. If your child had already passed his/her 21st birthday when the I-140 petition is approved or your priority date becomes current (whichever is later), the Child Status Protection Act allows that his/her age be reduced, for immigrant visa or I-485 purposes, by the amount of time the I-140 petition was pending.
Schedule A
Schedule A is a list of occupations for which the Department of Labor has determined there are not sufficient U.S. workers who are able, willing, qualified, and available. Because of this shortage, employing aliens in such occupations does not adversely affect the wages and working conditions of U.S. workers similarly employed. Therefore, Schedule A occupations are pre-certified by the Department of Labor and do not require the U.S. employer to obtain LC through PERM. Currently, Schedule A occupations are:
1. Group I:
----- Physical therapists: you must possess all the qualifications necessary to take the physical therapist licensing examination in the state where you will be practicing physical therapy.
----- Professional nurses: you must have (a) a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate; or (b) passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam; or (c) a full and unrestricted (permanent) license to practice nursing in the state where you will be employed.
2. Group II:
----- Persons of exceptional ability in the sciences or arts (except for performing arts) including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the U.S.
----- Persons of exceptional ability in performing arts whose work during the past 12 months required, and whose intended work in the U.S. will require, exceptional ability.
