Green Card for Professionals

U.S. Employment-Based Green Card Process: Key Considerations

The journey to obtaining a U.S. green card through employment can be complex, with various categories, timelines, and rules to understand. This post breaks down some crucial aspects discussed in a recent overview by Attorney Rajiv Khanna.

Understanding Your Options: Green Card Categories

Several employment-based (EB) categories exist, each with different requirements and processing characteristics:

• EB-2 and EB-3 (PERM Process): These categories often involve a labor certification (PERM) process, where the employer must demonstrate a lack of available, qualified U.S. workers for the position. While potentially more predictable in outcome, these categories can have long waits, especially for nationals of certain countries.
• EB-1 (Priority Workers): This category includes:
  • EB-1A (Extraordinary Ability): For individuals with extraordinary ability in their field (e.g., top 10-15%).
  • EB-1B (Outstanding Researcher/Professor): For internationally recognized researchers or professors with qualifying job offers.
  • EB-1C (Multinational Manager/Executive): For managers or executives transferring from a foreign company branch. EB-1 categories generally offer faster processing but can have less certainty regarding approval.
• National Interest Waiver (NIW): Typically under the EB-2 category, this allows individuals to bypass the labor certification if their work is deemed in the U.S. national interest. An employer sponsor is not required.

The Crucial Priority Date

For categories subject to annual limits and backlogs (often EB-2 and EB-3 for certain nationalities), the priority date is critical. This date, usually established when the labor certification is filed or the I-140 petition is filed (for categories not requiring labor certification),
determines your place in the green card queue.

• Importance for Backlogged Categories: For individuals born in countries with high application volumes like India, the wait under EB-2 or EB-3 can be extensive (potentially 10-15 years).
• Transferability: A significant advantage is that an approved I-140 petition secures your priority date. This date belongs to you and can be transferred to a subsequently filed petition, even in a different category (like moving from EB-2/EB-3 to EB-1) or with a different employer. This transferability can potentially shorten your overall wait time considerably. The priority date remains yours even if you leave the sponsoring employer or the initial I-140 is revoked.

Challenges for India-Born Applicants and the Priority Date

A significant challenge for individuals born in India is the long waiting times for Green Cards under the EB-2 or EB-3 categories due to high demand. Waits of 10, 12, or even 15 years are not uncommon. Because of this, many explore the EB-1A (extraordinary ability) or EB-1B (outstanding researcher with a full-time job) categories, which typically have much faster processing times (around 3-4 years). However, EB-1 approval is not guaranteed.

A common strategy is to pursue a Green Card through the labor certification (PERM) process, sponsored by an employer. In this process, the employer files the application, and the individual is the beneficiary without direct control over the application. Employer sponsorship can take about two years from start to approval of the I-140 petition, which follows the PERM approval.

The date the PERM application is filed becomes the priority date. This date is their place in the Green Card queue for India-born individuals. Securing an earlier priority date is advantageous, as it can be transferred to an EB-1 petition filed later. For instance, if a PERM is filed in 2025 and the I-140 is approved with a 2025 priority date, this 2025 date can be used if an EB-1A or EB-1B petition is filed in 2027, potentially saving significant time. This strategy of securing an earlier priority date through employer cooperation is standard.

Some individuals may qualify for a National Interest Waiver (NIW), which doesn't require an employer. However, NIW cases still fall under the EB-2 category.

Alternative EB-1 Categories

Beyond EB-1A and EB-1B, there's the EB-1C category for corporate professionals who have worked outside the U.S. for one year as an executive, manager, or employee of a company with a U.S. branch or parent company. Transferring to the U.S. after one year of such employment can lead to an EB-1C Green Card, which, like other EB-1 categories, has relatively fast processing times (2-4 years).

Transferring the I-140 Priority Date

It is important to note that the I-140 priority date belongs to the individual and can be transferred between different employment-based Green Card categories unlimited times. Once the I-140 is approved, the priority date is retained even if the individual leaves the sponsoring employer or if the employer revokes the I-140. So, that priority date is secure after PERM and I-140 approval (or I-140 approval through NIW).

Efficiency of Different Green Card Paths

When considering which Green Card path is more efficient, there is a trade-off between certainty and speed. Labor certification-based cases often have better predictability because the job market can be assessed, and the Green Card is more secure if there are insufficient qualified U.S. workers. However, EB-1A, EB-1B, and NIW cases are generally less predictable. EB-1C for international managers and executives tends to be more certain.

Application Steps and Timelines: The Overall Goal

While understanding the individual steps is essential, the primary goal is to reach the end of the Green Card process as quickly as possible. The entire process can take around two years, but the focus should be on achieving the final outcome. Timelines vary for different case types. For EB-1C and NIW, premium processing can often be used to get an initial decision. For PERM-based cases, it can take a couple of years just to reach the I-140 approval stage, where the priority date becomes secure.

If an individual changes employers after I-140 approval in employer-sponsored categories like EB1, EB2, and EB3, they can still retain their priority date. However, a new application would be required for EB-1B (researcher/professor), which is tied to a specific employer, although the priority date can be carried over if the I-140 was approved. EB-1A and NIW, being often independent of a specific employer, do not necessitate restarting the Green Card process if the employer changes, as long as the individual remains in their field.

Life During and After the Green Card Process

• Work Restrictions:  While the Green Card is being processed based on employer sponsorship, individuals generally cannot work for multiple employers unless the sponsoring employer is agreeable to concurrent H-1B status. The Green Card process itself does not grant work authorization until the very final stages. Even with Employment Authorization Documents (EADs), contractual issues with the sponsoring employer might restrict working for others. Concurrent H-1Bs are a separate avenue for multiple employers.

• Flexibility Post-Green Card: Once you receive your green card and after a reasonable period (e.g., 6 months), you generally gain significant flexibility. You can change employers, even move into a completely different field, or start your own business, provided you didn't have a preconceived intent to abandon the original job offer immediately upon approval. While there is a somewhat "grayish area" regarding immediate and drastic career changes, the bottom line is that after a reasonable period, these transitions are allowed.

• Maintaining Green Card/ Residency: A green card is initially valid for 10 years and can be renewed. However, it requires you to maintain permanent residence in the U.S.. Extended absences (over six months, and especially over a year) can lead to questions about abandonment of residence.

• Path to Citizenship: After five years of holding a green card and meeting residency requirements, you can apply for U.S. citizenship through naturalization.

Key Takeaway: The Priority Date

The priority date, secured after the PERM and I-140 approval, is a crucial piece of personal property in the immigration process, especially for those facing long backlogs. It is like a ticket number in a queue and determines the order in which Green Cards are processed.

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Disclaimer: This blog article provides general information about the U.S. employment-based Green Card process and should not be considered legal advice. Immigration laws and procedures are complex and subject to change. Readers should consult with a qualified immigration attorney for advice tailored to their individual circumstances.