Securing permanent residence in the United States through employment is one of the most common and structured immigration pathways for skilled professionals and investors. The employment-based (EB) green card system allows U.S. employers to sponsor foreign nationals for lawful permanent residence where no suitably qualified U.S. workers are available, or where the applicant’s skills, achievements, or investment materially benefit the U.S. economy.

Unlike temporary work visas such as the H-1B, L-1, or O-1, which are issued for a limited duration and tie an individual’s status to their job, the employment-based green card grants indefinite permission to live and work in the United States. It offers long-term stability and a route to U.S. citizenship through naturalisation after five years of permanent residence, subject to meeting the statutory requirements.

The employment-based immigration framework is built on five preference categories — EB-1 through EB-5 — each serving different professional profiles, from world-leading researchers and executives to skilled workers, special immigrants, and investors. These categories are constrained by annual numerical limits and per-country caps (with overall EB numbers set at around 140,000 each fiscal year, subject to sub-caps and reallocations), so waiting times can vary significantly by category and nationality.

What this article is about
This guide provides an in-depth, legally accurate overview of the U.S. employment-based green card process from initial eligibility to final approval. It explains the category framework, the Department of Labor PERM labour certification where required, the Immigrant Petition (Form I-140), and the final stage via Adjustment of Status or Consular Processing. It also clarifies priority dates, visa bulletin mechanics, costs and employer obligations (including who must pay PERM-related costs), travel and work authorisation during processing, AC21 portability rules, and current policy trends. The aim is to equip employers and foreign professionals — including UK-based readers — with a comprehensive reference for planning, compliance and risk management.

Section A: Understanding the Employment-Based Green Card

The U.S. employment-based green card system is a permanent immigration pathway for foreign professionals, researchers, investors, and certain special immigrants whose skills, achievements, or investment benefit the U.S. economy. It operates within a statutory framework that allocates immigrant visa numbers by category and country, creating distinct eligibility tests and queues. A clear grasp of this structure is essential to planning timelines, documenting eligibility, and avoiding process errors.

1. What is an Employment-Based Green Card?

An employment-based green card confers lawful permanent resident (LPR) status. LPRs may live and work in the United States indefinitely, change employers, pursue self-employment, or retire without losing status, subject to maintaining residence and admissibility. After five years of permanent residence, most LPRs may apply for U.S. citizenship by naturalisation, provided statutory criteria are met.

Employment-based permanent residence differs from temporary work visas (for example, H-1B, L-1, O-1). Those are time-limited and tied to a specific nonimmigrant classification. By contrast, a green card is an immigrant status with broader work and mobility rights. It does not include voting rights or eligibility for certain public offices, which are reserved for U.S. citizens.

From a legal standpoint, LPR status is granted under the Immigration and Nationality Act (INA). Holders must maintain a primary residence in the U.S., avoid prolonged absences suggestive of abandonment, and remain otherwise admissible. Failure to do so can jeopardise status.

2. EB Preference Categories (EB-1 to EB-5)

Employment-based immigrant visas fall into five preference categories under INA §203(b). Each targets different profiles and carries distinct evidentiary requirements. Where noted, certain categories may bypass the Department of Labor’s PERM labour certification.

Practice point: Category choice affects evidentiary burden, whether PERM is required, and the queue you will enter for a visa number. Where available, EB-1 or EB-2 NIW can remove PERM from the critical path.

3. Visa Caps and Priority Dates

Employment-based immigrant visas are numerically limited each fiscal year. Overall EB visa numbers are set at approximately 140,000, subject to distribution across preference categories and statutory sub-caps, with an additional per-country limit (generally 7% of the worldwide total) to prevent any single country dominating allocations. High-demand nationalities (notably India and China in EB-2/EB-3) therefore face longer queues.

Priority dates. A priority date establishes an applicant’s place in the queue. For PERM-required cases (most EB-2/EB-3), the priority date is the date the Department of Labor receives the PERM (ETA-9089) filing. For categories that do not require PERM (e.g., EB-1A, EB-1B, EB-1C, EB-2 NIW), the priority date is the date USCIS receives the Form I-140. This distinction is critical for tracking eligibility to file for Adjustment of Status or complete consular processing.

Visa Bulletin mechanics. Each month, the U.S. Department of State publishes the Visa Bulletin with two charts for employment-based cases: “Final Action Dates” (when a green card may be granted) and “Dates for Filing” (earlier filing eligibility for AOS when authorised by USCIS). Applicants must check which chart USCIS designates for I-485 filings in a given month. If demand exceeds supply, retrogression can occur, pushing cut-off dates backward even after a category was previously current.

Dependants and age. Spouses and unmarried children under 21 may immigrate as derivatives when a visa number is available. Because long queues can cause children to age out, families should consider protections under the Child Status Protection Act (CSPA), which in certain circumstances allows a calculated “CSPA age” to remain under 21 despite processing delays. Monitoring the priority date and filing as early as permitted helps mitigate risk.

Strategy. Where appropriate, consider cross-chargeability (using a spouse’s country of birth if more favourable), category upgrades (e.g., EB-3 to EB-2 if qualifications warrant), or selecting a category that avoids PERM to accelerate the start of your priority date.

Section Summary. Employment-based permanent residence runs on a category-and-quota system. Selecting the right EB category, understanding whether PERM is required, and knowing how priority dates are set and advanced via the Visa Bulletin are foundational to timeline management and risk control, particularly for applicants from oversubscribed countries.

Section B: The PERM Labor Certification Process

For most EB-2 and EB-3 employment-based green card cases, the PERM Labor Certification is the initial and most technical step. Managed by the U.S. Department of Labor (DOL), PERM—short for Program Electronic Review Management—requires the sponsoring employer to prove that no qualified, available, and willing U.S. worker can fill the offered position and that hiring the foreign national will not adversely affect wages or working conditions of similarly employed U.S. workers. This certification is mandatory before filing the immigrant petition (Form I-140) unless a statutory exemption applies.

1. What is PERM?

PERM serves as a U.S. labor market test rather than an immigration application. It verifies the legitimacy of the job offer and the need for a foreign worker. The employer must meet two principal conditions:

• No able, willing, qualified, and available U.S. worker was found for the position during a structured recruitment process.
• Hiring the foreign national will not adversely affect U.S. workers in similar roles in terms of pay or conditions.

The employer files the PERM, not the employee. The foreign national’s qualifications must precisely match the job requirements listed in the PERM filing; discrepancies can trigger denial or audit. DOL regulations under 20 CFR § 656 govern this process, and non-compliance can invalidate a certification or lead to employer debarment.

2. Steps in the PERM Process

The PERM process involves several sequential stages. Timing, documentation, and compliance with procedural deadlines are critical.

a. Prevailing Wage Determination (PWD)
Before recruitment, the employer must request a Prevailing Wage Determination from the DOL. The prevailing wage represents the minimum pay rate permitted for the role, based on location, experience, and duties. The employer must agree to pay at least this wage. PWD requests are submitted through the DOL’s FLAG (Foreign Labor Application Gateway) system and typically take 3–4 months.

b. Recruitment and Advertising
Once the wage is issued, the employer begins a good-faith recruitment campaign. For professional occupations (those normally requiring a bachelor’s degree or higher), this must include:

• Two Sunday newspaper advertisements in a newspaper of general circulation in the area of intended employment;
• A 30-day State Workforce Agency (SWA) job order; and
• At least three additional recruitment steps (e.g., job fairs, company website, trade journals, campus recruiting, or professional organisations).

The DOL requires that all recruitment begin no earlier than 180 days and end no later than 365 days before filing the PERM (20 CFR § 656.17(g)(1)). Employers must maintain a detailed recruitment report identifying each applicant, reasons for rejection, and copies of advertisements.

c. Filing ETA Form 9089
When recruitment is complete and no qualified U.S. worker has been identified, the employer files ETA Form 9089 electronically via the FLAG portal. This form records the job description, recruitment summary, offered wage, and the foreign national’s credentials. The filing date of the ETA 9089 becomes the case’s priority date for visa-queue purposes.

d. DOL Review and Audit
The DOL may certify, deny, or audit the case. Audits may be random or triggered by anomalies such as over-specific job requirements, inconsistent documentation, or unusually high wages. The employer must respond within 30 days of an audit notice and provide all requested recruitment evidence. DOL certification is valid for 180 days, during which the employer must file the I-140 petition.

3. Common PERM Issues and Delays

Even minor procedural errors can delay or derail certification. Common issues include:

• Improper recruitment: Missing or mistimed advertisements, non-compliant job descriptions, or incomplete recruitment reports.
• Prevailing wage disputes: Employers may challenge assigned wage levels if they believe the classification or data source is incorrect.
• Audit backlogs: Random audits can extend processing by 6–12 months.
• Cost-shifting violations: Under DOL rules, employers must pay all PERM-related costs — including attorney and advertising fees — and cannot seek reimbursement from the foreign worker.

To mitigate risk, employers should maintain detailed recruitment files for five years (per DOL retention requirements) and ensure all statements on the ETA 9089 match subsequent filings. Any inconsistency between the PERM and the I-140 may lead to Requests for Evidence (RFEs) or denial by USCIS.

Section Summary. PERM certification is the labour-market safeguard within the EB system. It tests the job market, protects U.S. workers, and provides the evidentiary foundation for the I-140 petition. Diligent record-keeping, timely recruitment, and compliance with DOL cost and audit rules are essential for successful certification.

Section C: Filing the Immigrant Petition (Form I-140)

Once the Department of Labor issues a certified PERM—where required—the employer proceeds to the next phase: filing the Immigrant Petition for Alien Worker (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). This stage formally classifies the foreign worker within an employment-based category (EB-1 through EB-5) and proves that both the worker and the job offer meet statutory requirements. For certain self-petition categories (EB-1A and EB-2 NIW), the foreign national files the petition independently.

1. Purpose of Form I-140

The I-140 petition serves two distinct purposes:

• Classification: It demonstrates that the foreign national qualifies under a specific EB category—based on their credentials, role, and supporting documentation.
• Employer’s Ability to Pay: It proves that the U.S. sponsoring employer has the financial capacity to pay at least the prevailing wage from the priority date onwards, as certified in the PERM.

The I-140 petition also establishes the worker’s priority date for visa allocation if one has not already been set by a PERM filing (for categories that bypass PERM). USCIS adjudication focuses on verifying consistency between the I-140 and the underlying PERM, where applicable, and on the legitimacy of the job offer.

For self-petition categories such as EB-1A or EB-2 NIW, the applicant must prove both eligibility for classification and that the proposed work benefits the United States, satisfying the “national interest” criteria outlined in USCIS policy.

2. Supporting Documentation

A well-documented I-140 submission is crucial to avoid Requests for Evidence (RFEs) or denials. Supporting materials typically include:

• Certified ETA Form 9089 (PERM), if applicable;
• Proof of the employer’s ability to pay—for example, annual reports, audited financial statements, or federal tax returns. Under recent USCIS guidance, once an I-140 is approved and the worker later changes jobs under AC21 portability, the original employer’s ability-to-pay obligation applies only up to the time of filing;
• Evidence of the beneficiary’s qualifications—educational degrees, transcripts, professional licences, and letters verifying work experience that pre-dates the PERM filing;
• Proof of corporate existence and business operations, such as articles of incorporation or business licences; and
• For self-petition cases (EB-1A or NIW), evidence of extraordinary ability or national-interest impact—publications, citations, awards, patents, or other objective achievements.

Each exhibit must correspond exactly with the PERM information or category claim. USCIS cross-checks job titles, duties, wage levels, and qualification descriptions for consistency. Discrepancies can trigger RFEs or suspicion of inaccuracy.

3. Premium Processing and Timeline

USCIS offers Premium Processing for most I-140 petitions via Form I-907 and an additional fee (USD 2,805 as of 2025). This guarantees agency action—approval, denial, or RFE—within 15 calendar days. However, Premium Processing does not accelerate visa number availability or subsequent Adjustment of Status (AOS) or Consular Processing stages.

Not all classifications qualify for Premium Processing. Historically, EB-1C (multinational managers) and EB-2 NIW petitions were excluded, though USCIS has been gradually expanding eligibility under its phased rollout program. Applicants should verify current availability before filing.

Standard I-140 processing averages 6–12 months, varying by USCIS service centre workload and case complexity. Employers often use Premium Processing where a timely I-140 approval is needed—for example, to extend H-1B status beyond six years under AC21 provisions or to support mobility planning.

Section Summary. The I-140 petition converts the Department of Labor’s certification (where applicable) into an approved immigrant classification, formally recognising the worker’s eligibility and the employer’s bona fide intent to hire. Accurate evidence, consistent job details, and proof of financial capacity are essential for smooth adjudication. Once approved, the petition anchors the worker’s priority date and allows progression to permanent residence when visa numbers become available.

Section D: Adjustment of Status or Consular Processing

After the I-140 petition has been approved and a visa number is available, the foreign national can complete the final step toward permanent residence. This may be done either through Adjustment of Status (AOS) within the United States or through Consular Processing abroad. Both result in the grant of lawful permanent resident (LPR) status, but each route has distinct procedural and jurisdictional requirements. The correct choice depends on where the applicant resides, current visa status, and whether lawful entry or parole has been established.

1. Adjustment of Status (Form I-485)

Adjustment of Status allows individuals already in the U.S. on a lawful visa or parole to apply for permanent residence without leaving the country. The application is filed with USCIS using Form I-485, “Application to Register Permanent Residence or Adjust Status.”

Eligibility requirements include:

• Lawful admission or parole into the U.S. (entry with inspection);
• An approved or concurrently filed Form I-140;
• Visa number availability under the U.S. Department of State Visa Bulletin; and
• Maintenance of lawful nonimmigrant status until the I-485 is filed, unless exempt under INA §245(k).

Applicants must undergo a medical examination (Form I-693) by a USCIS-designated civil surgeon, submit biometrics for background checks, and in most cases attend a USCIS interview. Some interviews may be waived where documentary evidence is sufficient.

During adjudication, applicants may apply for interim benefits:

• Employment Authorization Document (EAD): permits unrestricted employment while AOS is pending;
• Advance Parole (AP): allows international travel and re-entry without abandoning the AOS application.

Processing times vary by USCIS field office but generally range from 8–18 months. Applicants should avoid travelling abroad without Advance Parole, as this is deemed abandonment of the pending I-485. Maintaining underlying H-1B or L-1 status remains advisable where possible, providing fallback protection if the AOS is delayed or denied.

2. Consular Processing

Consular Processing applies to applicants residing outside the United States or those choosing to complete their case abroad. Once the I-140 is approved and a visa number is available, the case transfers to the National Visa Center (NVC) for document collection and interview scheduling.

Applicants must complete Form DS-260 online and submit supporting documents, including:

• Birth and marriage certificates;
• Police clearance certificates for all countries of residence after age 16;
• Financial documentation (Form I-864 Affidavit of Support, where required); and
• Passport and civil photos consistent with U.S. consular requirements.

The applicant attends an immigrant visa interview at the designated U.S. embassy or consulate. The consular officer verifies identity, admissibility, and compliance with U.S. immigration law, including any prior overstays or criminal history. Upon approval, the applicant receives an immigrant visa valid for entry into the United States. At the port of entry, Customs and Border Protection (CBP) admits the individual as a lawful permanent resident, and the physical green card is mailed to their U.S. address within several weeks.

Consular processing often takes less time than AOS once visa numbers are available but lacks interim benefits such as EAD or Advance Parole. It also carries logistical risks—such as administrative processing or document reissuance—that can delay final issuance.

3. Dependents and Green Card Benefits

Spouses and unmarried children under 21 qualify as derivative beneficiaries of the principal applicant’s employment-based petition. Dependents must independently file their I-485s (for AOS) or DS-260s (for consular processing) and attend separate medical exams and interviews.

Once granted LPR status, dependents enjoy identical rights and obligations to the principal applicant, including permission to work and study freely, eligibility for Social Security and driver’s licences, and eventual eligibility for U.S. citizenship after five years of residence. However, derivatives must still meet admissibility and security requirements individually.

Child dependents risk “aging out”—turning 21 before approval—due to backlogs. The Child Status Protection Act (CSPA, INA §203(h)) mitigates this by freezing the child’s age for specific periods. Nonetheless, parents should monitor visa bulletin movements closely to ensure the child remains eligible.

Section Summary. Adjustment of Status and Consular Processing represent the final gateway to permanent residence. AOS suits those lawfully present in the U.S., offering interim work and travel benefits. Consular Processing is preferred for those abroad, offering potentially faster resolution but fewer protections. Each route demands meticulous compliance with statutory eligibility and documentation requirements.

Section E: Transitioning from Nonimmigrant Status

Most employment-based green card applicants begin their U.S. journey under a temporary, employment-authorised visa such as H-1B, L-1, or O-1. Transitioning from these nonimmigrant categories to permanent residence requires careful timing, documentation, and status management. The U.S. immigration system recognises dual intent for certain visa classes, allowing holders to pursue permanent residence without violating the terms of their temporary stay. Nevertheless, applicants must maintain lawful status and consistency between their temporary employment and the green card process.

1. From H-1B, L-1, or O-1 to Green Card

Dual intent allows visa holders such as H-1B and L-1 employees—and to a more limited extent, O-1 workers—to apply for permanent residence while remaining in valid temporary status. This framework prevents a conflict between “nonimmigrant intent” and long-term residency goals.

For H-1B and L-1 visa holders, the process typically begins with the PERM labor certification and I-140 filing. Once the I-140 is approved, the applicant’s lawful presence may extend beyond the usual visa maximums under the American Competitiveness in the Twenty-First Century Act (AC21) if the green card process remains pending.

Key considerations include:

• Maintaining valid visa status until filing Form I-485 or departing for consular processing;
• Avoiding unauthorised employment or overstay, which can trigger inadmissibility bars under INA §212(a)(9); and
• Ensuring that the job offered in the PERM and I-140 filings reflects the position actually held or a legitimate progression of it.

Employers should initiate the PERM process at least 12–18 months before an H-1B worker’s sixth year, allowing time for PERM and I-140 adjudication before the visa maxes out. AC21 permits H-1B extensions in one-year increments beyond six years where a PERM or I-140 has been pending for 365 days, and in three-year increments where the I-140 is approved but the priority date is not current.

2. Portability and Job Changes (AC21 Act)

Under AC21, applicants with a pending Form I-485 for at least 180 days may change employers without restarting the green card process if the new job is in the same or similar occupational classification. This rule provides critical flexibility in lengthy cases and reduces the risk of professional stagnation during long visa backlogs.

“Same or similar” is determined primarily by comparing job duties, skill levels, and wage rates, often using Standard Occupational Classification (SOC) codes. USCIS guidance confirms that minor changes in title or salary do not automatically disqualify portability, provided the overall role remains substantively comparable.

To exercise portability, the applicant files Form I-485 Supplement J confirming the new employment offer. USCIS will then evaluate whether the new position aligns sufficiently with the original petition. Employers should document continuity of duties and skill sets to reduce adjudication risk.

If an applicant changes jobs before the I-140 is approved, the new employer must restart the process, including PERM. The original priority date, however, can often be retained once the first I-140 is approved, even if filed by a different employer, unless the earlier petition was revoked for fraud or willful misrepresentation.

3. Travel and Work Authorization During Processing

Applicants pursuing Adjustment of Status may obtain interim travel and employment rights through Advance Parole (AP) and an Employment Authorization Document (EAD). These benefits remain valid while the I-485 is pending and may be renewed until adjudication.

Using an EAD grants open-market work authorization, providing flexibility if a nonimmigrant visa expires or employment changes. However, holders of valid H-1B or L-1 status are often advised to continue using that visa for travel and work where possible, as it preserves underlying nonimmigrant status in the event of green card denial.

Travelling abroad without Advance Parole automatically abandons a pending I-485 unless the individual re-enters using an H-1B or L-1 visa. Careful coordination with counsel is recommended before any international travel during AOS processing.

Section Summary. Transitioning from temporary to permanent status involves balancing nonimmigrant compliance with long-term residency planning. The dual intent doctrine, AC21 portability, and interim EAD/AP benefits make this feasible, but applicants must maintain lawful status, document job consistency, and time filings strategically to avoid lapses that could jeopardise eligibility.

Section F: Processing Times, Costs, and Employer Obligations

The employment-based green card process requires significant time, planning, and financial commitment. Delays can arise from backlogs, audits, or changes in visa bulletin cut-off dates. Employers and applicants who understand realistic timelines and compliance duties can mitigate disruption and ensure lawful sponsorship throughout the process.

1. Timeline Overview

Total processing time varies greatly depending on the visa category, country of chargeability, and government workload. A well-prepared case may conclude within 18–30 months, while applicants from high-demand countries such as India or China may face multi-year waits due to per-country caps.

Typical sequence and durations:

• PERM Labor Certification: 6–18 months including prevailing wage, recruitment, and DOL review;
• Form I-140 Adjudication: 6–12 months (or 15 days with Premium Processing where available);
• Adjustment of Status or Consular Processing: 8–18 months;
• Visa Bulletin Retrogression: Variable and country-specific—can extend final adjudication by years.

Employers should start the process at least 12–18 months before the expiration of an H-1B worker’s six-year limit to preserve extension eligibility under AC21. Continuous monitoring of visa bulletin movements is vital for planning recruitment and retention strategies.

2. Government Filing Fees and Legal Costs

Employment-based green card applications involve several mandatory filing and administrative fees. As of 2025, approximate government fees are:

• Prevailing Wage / PERM: No DOL filing fee, but employers incur recruitment and advertising costs (typically USD 1,000–3,000).
• Form I-140: USD 715 plus optional Premium Processing fee of USD 2,805.
• Form I-485 (AOS): USD 1,440 per applicant, including biometrics.
• Form DS-260 (Consular Processing): USD 345 per applicant.
• Medical Exam: USD 200–500 depending on provider.

Legal fees depend on complexity and employer size, generally ranging from USD 5,000–10,000 for EB-2/EB-3 cases and higher for extraordinary ability or EB-5 petitions. Employers are legally obligated under 20 CFR § 656.12(b) to pay all costs associated with the PERM process, including attorney and advertising fees. Transferring these to the foreign worker can invalidate the certification and result in penalties.

Subsequent stages (I-140 and Adjustment/Consular Processing) may be employer- or employee-funded, depending on company policy. Many multinational employers cover the full cost under their mobility or retention programmes.

3. Employer Responsibilities and Compliance

Employers play a central role in ensuring the integrity of the employment-based green card process. Their obligations span documentation, payment, and record-keeping, and failure to comply can trigger DOL audits or USCIS investigation.

Key responsibilities include:

• Good-faith recruitment: Conduct lawful, unbiased recruitment per PERM regulations to confirm no qualified U.S. worker is available.
• Record retention: Maintain all PERM-related records (advertisements, resumes, interview notes, recruitment reports) for five years after filing.
• Ability to pay: Demonstrate capacity to pay the certified wage from the priority date until the foreign national achieves LPR status. After AC21 portability, the original employer’s obligation covers only the period up to I-140 filing.
• No cost-shifting: Do not require the foreign worker to reimburse or cover PERM-related expenses.
• Audit cooperation: Respond to any DOL or USCIS audit promptly and completely with supporting documentation.

Employers that repeatedly violate DOL or USCIS rules may face debarment from filing future PERM applications, civil penalties, or reputational damage. Regular internal compliance reviews and counsel oversight are best practices for large-scale sponsorship programmes.

Section Summary. Timelines for employment-based permanent residence are lengthy and subject to fluctuation. Accurate forecasting, full compliance with DOL cost rules, and diligent record management protect both the employer and the worker. By budgeting realistically and tracking visa movements, companies can sustain lawful sponsorship while supporting workforce stability.

Section G: Recent Trends and Policy Updates

The employment-based green card process continues to evolve through regulatory reform, digital transformation, and shifting administrative priorities. Applicants and employers must remain alert to changes in visa bulletin trends, USCIS and DOL policy guidance, and legislative developments that can affect eligibility, timing, and compliance obligations.

1. Annual Visa Bulletin Movements

The U.S. Department of State Visa Bulletin remains the primary indicator of immigrant visa availability. It establishes “cut-off” dates by category (EB-1 through EB-5) and country of chargeability. When an applicant’s priority date is earlier than the listed date for their category and country, a visa is considered available.

Over the past few fiscal years, EB-2 and EB-3 India and EB-2 China categories have faced persistent retrogression—where cut-off dates move backward due to excess demand. Some applicants have waited over a decade for visa numbers. Conversely, EB-1 categories have generally remained current for most countries, while EB-5 investor visas stabilised following enactment of the EB-5 Reform and Integrity Act of 2022, which introduced reserved visas for rural, high-unemployment, and infrastructure projects.

Applicants are advised to monitor monthly Visa Bulletins closely and consult USCIS to confirm which chart (Final Action Dates or Dates for Filing) applies for Adjustment of Status filings in a given month. Strategic actions—such as cross-chargeability through a spouse or category “upgrading” from EB-3 to EB-2—can sometimes reduce delays.

2. Modernisation Efforts and Digital Filing

Both USCIS and the Department of Labor have accelerated efforts to modernise immigration processing through electronic filing systems and data integration. The DOL’s Foreign Labor Application Gateway (FLAG) now supports full electronic PERM submissions, prevailing wage requests, and case tracking. USCIS has expanded online account capabilities for Form I-140 and I-907 filings, offering faster document exchange and case status updates.

Modernisation goals include end-to-end digital adjudication, automated communication between agencies, and reduction of manual data errors. However, inconsistent implementation, technical outages, and uneven adjudication standards remain challenges. USCIS continues to target multi-year backlogs through staffing increases and workflow reforms announced in its Strategic Plan for 2024–2028.

The DOL has also begun using AI-assisted wage analysis to refine prevailing wage determinations and improve accuracy. Employers should monitor emerging guidance carefully, as increased automation can introduce new compliance risks if wage levels are misclassified or job descriptions are incomplete.

3. Reform Proposals and Legislative Updates

Several legislative and policy developments are shaping the employment-based immigration landscape:

• Per-Country Cap Reform: Bills such as the Equal Access to Green Cards for Legal Employment (EAGLE) Act have proposed eliminating or phasing out the 7% per-country cap to reduce backlogs for oversubscribed nationalities. As of late 2025, no final enactment has occurred, but bipartisan support continues.
• STEM Talent Retention: The U.S. administration has expanded guidance for STEM graduates, broadening eligibility under the National Interest Waiver and O-1 categories to encourage retention of high-skilled foreign talent.
• Processing Transparency: USCIS now publishes case-processing dashboards and aims to achieve six-month average adjudication times for most benefits by FY2026.
• EB-5 Integrity Enforcement: Enhanced oversight continues under the 2022 EB-5 Integrity Act, requiring regional centres to register annually, maintain fund-trace documentation, and adhere to strict job-creation reporting.

While comprehensive immigration reform remains politically elusive, incremental policy updates indicate a long-term shift toward greater digitalisation, accountability, and STEM-based workforce integration. Employers sponsoring foreign talent should review their immigration strategies annually to adapt to these evolving conditions.

Section Summary. Employment-based immigration in 2025 reflects both progress and constraint. Digital infrastructure improvements and expanded STEM pathways support efficiency and retention, yet visa backlogs and per-country limits continue to restrict movement in key categories. Staying current with policy developments and engaging proactive legal guidance remain critical to navigating this dynamic environment.

FAQs

What are the main employment-based green card categories?
Employment-based (EB) green cards fall under five preference categories: EB-1 (priority workers), EB-2 (advanced degree professionals or exceptional ability), EB-3 (skilled workers and professionals), EB-4 (special immigrants), and EB-5 (investors creating U.S. jobs). Each category has unique eligibility standards and may or may not require PERM certification.

How long does it take to get an employment-based green card?
Timelines vary significantly by nationality and category. For countries without backlogs, the process can take roughly 18–30 months. For oversubscribed countries like India and China, wait times can exceed 10 years due to per-country visa caps. Key variables include the Visa Bulletin cut-off dates, agency workload, and audit or RFE delays.

Can I apply for a green card without employer sponsorship?
Yes, but only under limited self-petition categories. Individuals of extraordinary ability (EB-1A) or applicants qualifying for a National Interest Waiver (EB-2 NIW) may apply independently if they can demonstrate national benefit or international distinction. Most other categories require a U.S. employer to sponsor the application through PERM and Form I-140.

What happens if my employer withdraws the petition?
If the I-140 is withdrawn before approval, the case ends and must be re-filed by a new employer. However, once approved, an I-140’s priority date is generally retained even if the petitioning employer later withdraws it—unless USCIS revokes it for fraud, misrepresentation, or error. Applicants with an I-485 pending for 180 days may also change employers under AC21 portability if the new job is in the same or similar classification.

Can my family work while my green card is pending?
Yes. Dependants (spouses and unmarried children under 21) filing Adjustment of Status applications may apply for Employment Authorization Documents (EADs), allowing them to work lawfully during processing. For consular processing, work rights commence only after admission as lawful permanent residents.

What is the difference between Adjustment of Status and Consular Processing?
Adjustment of Status (AOS) occurs within the U.S. and allows applicants to remain in lawful status while USCIS adjudicates the Form I-485. Consular Processing is completed abroad at a U.S. embassy or consulate using Form DS-260. AOS offers interim benefits such as EAD and Advance Parole, while Consular Processing may provide faster adjudication once a visa number is available.

What are priority dates and why do they matter?
A priority date is the applicant’s place in the green card queue. For PERM cases, it’s the DOL filing date; for non-PERM cases, it’s the I-140 filing date. USCIS and the Department of State allocate immigrant visas based on these dates. Applicants can track movement using the monthly Visa Bulletin.

Can I change employers while my green card is pending?
Yes, if specific criteria are met. Under AC21, you can change employers once your I-485 has been pending for at least 180 days, provided the new role is in the same or similar occupational classification. To confirm portability, file Form I-485 Supplement J with USCIS. Substantial changes in duties or salary may require additional justification.

What are the most common reasons for denial?
Denials often result from inconsistencies between PERM and I-140 details, inability of the employer to prove the ability to pay, misrepresentation, or failure to maintain lawful status. Other causes include incomplete recruitment documentation or inadmissibility issues under INA §212(a). Rigorous documentation and legal oversight reduce these risks.

Can my children lose eligibility during the process?
Yes. Children who turn 21 before receiving permanent residence may “age out.” The Child Status Protection Act (CSPA) allows age to be “frozen” in certain circumstances by subtracting I-140 processing time from the child’s age at visa availability. Nonetheless, timing remains critical, particularly for families affected by visa retrogression.

Conclusion

The employment-based green card is the cornerstone of the United States’ skilled immigration framework, providing qualified foreign nationals with the right to live and work permanently in the country. For individuals, it delivers long-term security, employment freedom, and a clear route to U.S. citizenship after five years of lawful residence. For employers, it offers a means of retaining critical global talent while contributing to the economic growth and innovation that the U.S. labour market demands.

The process, however, is complex and multi-layered. It requires cooperation between the U.S. Department of Labor, U.S. Citizenship and Immigration Services, and the Department of State. Each stage — from PERM certification through to I-140 adjudication and the final adjustment or consular step — carries its own compliance requirements, documentation standards, and procedural risks.

Success lies in preparation and precision. Employers must ensure good-faith recruitment, full payment of PERM-related costs, and documentary consistency between filings. Applicants must maintain lawful status, monitor priority dates, and understand how policy shifts or legislative changes can affect eligibility. Legal advice is not only recommended but vital to manage timing and compliance effectively.

Despite administrative backlogs and legislative inertia, the U.S. employment-based immigration system remains one of the most stable and respected pathways to permanent residence in the world. For UK-based professionals and global employers alike, understanding this process — and approaching it strategically — ensures access to long-term opportunities within the U.S. economy while remaining compliant with federal law.

Glossary

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Author

Nita Upadhye

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.

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