Employment-based green cards let a foreign national become a lawful permanent resident of the United States based on a job or an investment, rather than a family relationship. The law divides these into five "preference" categories - EB-1 through EB-5 - each with different eligibility rules, and each competing for a limited number of visas issued every year. Most cases in the middle categories also require the employer to first complete a Department of Labor process called PERM labor certification. This article walks through the categories, PERM, employer sponsorship, and how priority dates and backlogs work, at a high level. It is general information, not a substitute for individual legal advice.
The Five Employment-Based Preference Categories
Congress sets an annual worldwide limit on employment-based immigrant visas and divides that limit among five categories, with additional per-country limits that can create longer waits for people born in countries with high demand. The categories are commonly called EB-1 through EB-5.
EB-1: Priority Workers
Extraordinary ability in the sciences, arts, education, business, or athletics, with sustained national or international acclaim.
Outstanding professors and researchers with international recognition in a specific academic field.
Multinational executives and managers transferring to a U.S. affiliate, subsidiary, or parent company after qualifying employment abroad.
EB-1 does not require PERM labor certification, and the extraordinary-ability subcategory can be self-petitioned without an employer.
EB-2: Advanced Degree Professionals and Exceptional Ability
This category covers people with a U.S. advanced degree (or a foreign equivalent) or its equivalent combination of a bachelor's degree plus progressive experience, and people who can show exceptional ability in the sciences, arts, or business. EB-2 usually requires PERM and an employer sponsor, but some applicants qualify for a National Interest Waiver (NIW), which waives both the labor certification and the job offer requirement if the work is found to significantly benefit the national interest of the United States.
EB-3: Skilled Workers, Professionals, and Other Workers
Skilled workers - jobs requiring at least two years of training or experience.
Professionals - jobs requiring a U.S. bachelor's degree or foreign equivalent.
Other workers - jobs requiring less than two years of training or experience (this subcategory has a much smaller annual allotment and typically longer waits).
EB-3 generally requires both PERM labor certification and an employer sponsor.
EB-4: Special Immigrants
This is a narrower category covering groups defined by statute, including certain religious workers, Special Immigrant Juveniles, certain international broadcasters, and a handful of other specific classifications. Eligibility rules vary significantly by subgroup.
EB-5: Immigrant Investors
EB-5 does not require an employer or a job offer. Instead, the applicant invests a qualifying amount of capital in a new commercial enterprise that creates the required number of full-time U.S. jobs, either directly or through a designated regional center. Minimum investment amounts, the definition of Targeted Employment Areas, and program integrity rules have changed in recent years and remain subject to further rulemaking, so confirm current figures and requirements directly on the USCIS EB-5 program page before relying on any number.
What Is PERM Labor Certification?
PERM stands for Program Electronic Review Management. It is the process by which the U.S. Department of Labor (DOL) certifies that:
there are not enough able, willing, qualified, and available U.S. workers for the job at the location where the work will be performed, and
hiring the foreign worker will not adversely affect the wages and working conditions of U.S. workers in similar jobs.
PERM applies to most EB-2 (outside the National Interest Waiver) and EB-3 cases. It generally does not apply to EB-1, the EB-2 National Interest Waiver, or EB-5.
How PERM Works, at a High Level
Prevailing wage determination: The employer requests a prevailing wage determination from DOL for the specific job and location.
Recruitment: The employer conducts a recruitment process to test the U.S. labor market for the position, following DOL's specific advertising and timing requirements.
Filing Form ETA-9089: If recruitment does not identify a qualified, available U.S. worker, the employer files the Application for Permanent Employment Certification (Form ETA-9089) with DOL. As of June 2023, PERM applications are filed electronically through DOL's Foreign Labor Application Gateway (FLAG) system; paper filings are no longer accepted.
DOL review and certification: DOL reviews the application and, if approved, certifies it.
Flagged deadline: Once DOL certifies a PERM application, the employer generally has 180 days to file the immigrant petition (Form I-140) with USCIS based on that certification. If the 180-day window is missed, the certification expires and the employer typically must restart the PERM process.
Employer Sponsorship and Form I-140
For categories that require it, the U.S. employer - not the worker - is the petitioner. The employer must show it can offer, and pay, at least the certified prevailing wage for the position. After PERM certification (where required), the employer files Form I-140, Immigrant Petition for Alien Worker, with USCIS. USCIS reviews the petition to confirm the job offer, the employer's ability to pay the offered wage, and the worker's qualifications for the category claimed.
Some categories - EB-1 extraordinary ability, the EB-2 National Interest Waiver, and EB-5 - allow the individual to file the petition without an employer sponsor.
Priority Dates and Visa Bulletin Backlogs
Because Congress caps the number of employment-based visas issued each year, and also limits how many can go to people born in any single country, demand in some categories and countries exceeds the annual supply. This creates a waiting line, tracked by your priority date.
For PERM-based cases, the priority date is normally the day the PERM application was filed with DOL.
For categories that do not require PERM, the priority date is normally the day the I-140 petition was filed with USCIS.
The U.S. Department of State publishes a monthly Visa Bulletin at travel.state.gov showing cutoff dates by category and country of birth. When your priority date is earlier than the published cutoff date for your category and country, a visa is currently available to you, and you may be able to file for an immigrant visa abroad or adjustment of status (Form I-485) if you are already in the United States. Because cutoff dates move forward, stay still, or sometimes move backward ("retrogress") from month to month, do not rely on a wait-time estimate from any source other than the current Visa Bulletin and USCIS guidance.
What to Do
Identify the category that fits your situation - your education, experience, achievements, or investment capacity, and whether you have (or can get) an employer sponsor.
Confirm whether PERM applies to your category, and if so, have your employer begin the prevailing wage and recruitment steps.
Track your priority date once it is established, and check the Visa Bulletin at travel.state.gov every month.
Watch the 180-day filing window after PERM certification, and any other deadlines USCIS or DOL sets in your specific case.
Verify current forms, fees, and processing times directly on uscis.gov and dol.gov before filing anything, since these details change.
Consider consulting a licensed immigration attorney or a Department of Justice-recognized accredited representative, particularly for anything involving category selection, timing a job change while a case is pending, or a PERM or petition denial.
A Note on Fraud
Employment-based green card cases involve real money, real jobs, and real deadlines, which makes them a common target for fraud. Be cautious of anyone who is not a licensed attorney or a DOJ-accredited representative offering to handle your immigration case - including so-called "notarios," unlicensed consultants, or anyone who guarantees an outcome, promises to skip PERM recruitment requirements, or asks you to sign blank forms. You can verify an attorney's license with your state bar and search for accredited representatives and recognized organizations through the Department of Justice's Executive Office for Immigration Review (justice.gov/eoir).
This article is general legal information, not legal advice, and does not create an attorney-client relationship. Immigration rules and processing details change frequently - always confirm current requirements with USCIS (uscis.gov), the Department of Labor (dol.gov), or the State Department (travel.state.gov), and consult a qualified immigration attorney or DOJ-accredited representative about your specific situation.
Frequently asked questions
Do I need an employer to get an employment-based green card?
For most categories, yes - EB-2 and EB-3 (outside the National Interest Waiver option) and most EB-4 and EB-1 subcategories require a specific U.S. employer to offer a job and sponsor the petition. The main exceptions are EB-1 extraordinary ability, the EB-2 National Interest Waiver, and EB-5 investors, all of which can self-petition without an employer.
What is a priority date and why does it matter?
Your priority date is generally the date your PERM labor certification (or, if none is required, your I-140 petition) was filed. It fixes your place in line for a limited number of visas issued each year in your category and country of birth. You compare your priority date to the cutoff dates published in the monthly Visa Bulletin at travel.state.gov to see whether a visa is currently available to you.
How long does the whole process take?
There is no single answer - it depends on the category, your country of birth, and current backlogs, and these change constantly. Rather than rely on a number that may already be outdated, check current processing times on uscis.gov and current wait estimates in the Visa Bulletin at travel.state.gov.
Can I change jobs while my green card case is pending?
Sometimes, but the rules are technical and depend on which stage you're in (PERM, I-140, or a pending I-485 adjustment of status application) and how similar the new job is. Changing jobs at the wrong time can jeopardize your case, so confirm the current rules with USCIS or an immigration attorney before making a move.
What is EB-5 and do I need a job offer for it?
EB-5 is the immigrant investor category. It does not require an employer or a job offer; instead, you invest a qualifying amount of capital in a new commercial enterprise that creates the required number of U.S. jobs. Because minimum investment amounts and program rules have changed in recent years and continue to evolve, confirm the current requirements directly on the USCIS EB-5 program page before relying on any figure you see elsewhere.
This article is general legal information, not legal advice, and may not reflect the most current law or the law in your jurisdiction. Laws vary by state and change over time. For advice about your specific situation, consult a licensed attorney.
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