The U.S. immigration law provides foreign nationals with a variety of ways to become lawful permanent residents (green card holders) through employment in the United States. These Employment-Based (EB) “preference immigrant” categories have three broad categories, as described below. Receiving a green card based on employment generally involves a three-step process:

1. First, employers seeking to petition on behalf of foreign workers are commonly required to obtain certification from the Department of Labor (DOL), establishing that there are no U.S. workers available, willing, and qualified to fill the position at a wage that is equal to or greater than the prevailing wage generally paid for that occupation in the geographic area where the position is located.
2. Second, the employer is required to petition U.S. Citizenship and Immigration Services (USCIS) for the foreign worker. Immigrants can petition for themselves under limited circumstances.
3. Third, a foreign worker who is already in the United States in a temporary visa classification may apply for “adjustment of status” to permanent residence upon the approval of the employer’s petition, if there is a visa number available. If these conditions have been met and the individual is outside the United States or is in the United States but chooses to apply for an immigrant visa at a U.S. Embassy or Consulate abroad, the individual files an immigrant visa application, which is processed by a U.S. consular officer.

Most foreign nationals who obtain permanent residency are already in the United States. The overall numerical limit for permanent employment-based immigration is 140,000 per year. This number not only includes the immigrants themselves but their eligible spouses and minor children as well, meaning that the actual number of employment-based immigrants is less than 140,000 each fiscal year. Moreover, the 140,000 visas are divided among five preference categories, each of which is subject to its own numerical cap. Each country can receive no more than 7% of the total annual Family-Based (FB) and Employment-Based preference limits. This totals approximately 25,620 visa/green cards each year per country. When there are FB visas in one fiscal year (FY), those visas roll over to the EB category in the next fiscal year. For example, the Department of States estimates that the FY 2023 employment-based annual limit will be approximately 197,000, due to approximately 57,000 unused family-sponsored visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

The Employment-Based Preference Categories

There are three broad Employment-Based visa categories.

Below are the categories:

• First Preference Category (EB-1): – Aliens of Extraordinary Ability, International Managers/Executives, and Outstanding Professors and Researchers.
  • The EB-1 visa is reserved for foreign nationals who demonstrate extraordinary ability in their field. The qualifying field includes science, arts, education, business, or athletics. Applicants in these categories must demonstrate outstanding achievements with sustained national or international acclaim. Applicants under EB-1 do not require a PERM application or Labor Certification from the Department of Labor instead applicants or their employees submit I-140, Immigrant Petition for Alien Worker directly to USCIS. Congress has allocated 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. The EB-1 category is further divided into three broad categories:
    • EB-1a visa: Extraordinary Ability green card.
    • EB-1b visa: Outstanding Professor or Researcher green card.
    • EB-1c visa: Managers or Executives of multinational companies
  • The EB-1 category is particularly desirable and advantageous because the priority date is current, and EB-1 does not require a PERM application or Labor Certification.
• Second Preference Category (EB-2): – Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
  • The EB-2 visa category has two sub-categories. The first is for foreign nationals with an advanced degree (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field.) The second subcategory is EB-2 National Interest Waiver (NIW). Foreign nationals with exceptional ability in the sciences, arts, or business qualify for this visa category. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” or a foreign national with exceptional ability in their area of specialization. Unlike the first subcategory, individuals under EB-2 NIW do not require PERM or Labor Certification.
  • Congress has allocated 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

• Third Preference Category (EB-3): – Skilled Workers, Professionals, and Other Workers.
  • The EB-3 visa is a third-preference employment-based green card for skilled, professional, or other workers. The requirement for the three subcategories is somewhat less stringent than EB-1 and EB-2; as a result, the wait often takes more time.
    • Skilled Workers: Foreign nationals under this visa category must demonstrate at least two years of job experience, education, or training that meets the job requirements specified in the labor certification.
    • Professionals: Foreign nationals under this visa category must possess a U.S. baccalaureate or foreign equivalent degree, and that a baccalaureate degree is the normal requirement for entry into the occupation.
    • Unskilled Workers (Other Workers): Foreign nationals under this visa category must demonstrate the ability to perform unskilled labor (requiring less than 2 years of training or experience), that is not of a temporary or seasonal nature.
  • All workers under the EB-3 category are required to have PERM and Labor Certification. In addition, an offer from the employer for a full-time job offer after the foreign national’s green card has been approved.
  • Congress has allocated 28.6% of the worldwide level, plus any numbers not required by first and second preferences, of which not more than 10,000 may be provided to “*Other Workers”.

What are the common terms used in the visa bulletin? What must I know to read the visa bulletin terms properly?

As described above, the first step in EB preference categories starts with the employer filing a labor certification with the DOL, if the preference category requires labor certification. If the EB preference category requires a labor certification, the date the DOL accepts the labor certification for processing becomes the foreign national’s priority date. If the preference category does not require a labor certification from the DOL, then the foreign national’s priority date is the date that USCIS accepts his/her Form I-140 for processing to classify the sponsored worker under the requested preference category.

Priority Date: Please see above.

Current (C): Simply means that there is no backlog and no wait time for a green card. Whenever a particular priority date becomes “current” it means it is at the front of the line. If your I-130 petition is now current, you may apply for permanent residence (green card) in the United States.

Unauthorized (U): This occurs occasionally when visa numbers are not unauthorized for issuance.

Chargeability area: This term is used for the green card applicant’s country of birth. It is important as there are also additional country caps. Applicant’s green cards will be “charged” toward the annual quota of green cards available to citizens of their country of birth.

Cut-off date: The dates you see on the visa bulletin tables are called “cut-off dates.” These dates are essentially the front of the green card line. Applicants with priority dates prior to the cut-off date can submit their green card applications.

Visa backlog: In preference categories in which there are more qualified applicants than available visa numbers, the preference category will become oversubscribed or “backlogged.” This leads to the U.S. Department of State to create a “priority date cut-off” for the preference categories that are backlogged. This is illustrated by the second preference employment-based category (EB-2) of Indian and Chinese nationals as well as the third preference employment-based category (EB-3). The backlog occurs at the final stage of the permanent residence process.

How to Read the Visa Bulletin?

Once you know your priority date and your preference category, you are all set to read the visa bulletin. When the State Department release the visa bulletin for each month, they release two charts/tables. For EB cases, the first is the title Final Action Dates for Employment -Sponsored Preference Cases (Final Action Dates) The second is the Date for Filing Employment-Sponsored Visa Applications (Date of Filing). Each table has separate columns for China, India, Mexico, and the Philippines, and these countries typically have much longer wait times for a green card. This is because the annual demand for green cards exceeds the 7% “country cap” described above. Once you know your priority date, your preference category, and the country of origin; the next question is which table to use to determine the next steps in your case.

1. FINAL ACTION DATES FOR EMPLOYMENT-SPONSORED PREFERENCE CASES

The Final Action Dates chart shows priority dates that have reached the front line and are ready for approval. In other words, a visa number is available if a priority date comes before the date listed in this chart. Below is an example from the November 2022 Visa bulletin:

To illustrate how to read the above table, we will use the below example of I-140 approval.

In the above case, we see two important items highlighted. The first is the priority date is December 11, 2012. The second is the preference category, which is EB-2, Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. The last key information required is the country of origin, if we use, India. For the 2^nd category for India, the cutoff date is April 1, 2012. Since our priority date here is December 11, 2012, then the priority date is not current. That means the applicant does not have a visa available for him or her. If we change the country of origin to Angola, or another country other than China or India, then we see the chart showing “C” for current. Thus, a visa is immediately available for those applicants.

DATES FOR FILING EMPLOYMENT-SPONSORED VISA APPLICATIONS

The second chart indicates when the intending immigrant can apply for an immigrant visa if for consular processing or file I-485, Adjustment of Status if in the U.S. Intending immigrant applicants living in the United States, can check a page called “When to file your adjustment of status application” published by USCIS every month. It indicates they can submit their green card application based on the visa bulletin’s “dates for filing” chart or whether they need to wait to meet the dates in the “final action dates” chart.

For EB Cases, USICS allows applicants to use the Date of Filing Chart at the beginning of the fiscal year typically. At the beginning of the fiscal year since the visa numbers reset, USCIS is more likely to use the Date of Filing Chart. The advantage of filing using the Date of Filing Chart is although a visa is not available, nor can the applicant receive his/her green, he or she may file for Employment Authorization and Advance Parole. For example, in November 2022, USICS is accepting Adjustment of Status cases based on the Dates of Filing chart as illustrated below:

To illustrate how to read the above table, we will use the below example of I-140 approval.

In this case, we see the priority date is April 12, 2021, under the preference category of EB-1(C), Managers or Executives of multinational companies. In this EB-1 category, visas are immediately available for all cases, therefore, this applicant may file his or her adjustment of status application and is eligible to receive his/her green card since a visa is immediately available.

If we use the first I-140 posted above, with a priority date of December 11, 2012. The second is the preference category, which is EB-2, Members of the Professions Holding Advanced Degrees, or Persons of Exceptional Ability. Let’s use India as the country of origin for this intending immigrant. The cutoff date for India in the EB-2 category is May 1, 2012. Since December 11, 2012, is later than the date listed for India, the applicant is ineligible to file an Adjustment of Status Application.

Conclusion

Navigating the steps required to file for an employee or for an applicant to file an Adjustment of Status Application is complex. We know how important it is to have the right advice to complete the process in a timely manner. Please contact us to ensure you get the proper guidance for your specific situation.