I. Introduction

U.S. immigration law provides a variety of ways to become a lawful permanent resident through employment in the United States. Two of these employment-based (EB) “preference immigrant” categories are the second preference (EB-2) and third preference (EB-3) categories.

• EB-2: The EB-2 category is defined as “aliens who are members of the professions holding advanced degrees or who have exceptional ability.” Specifically, members of the professions holding advanced degrees are individuals who hold a U.S. master’s degree or higher, or a foreign equivalent degree. Additionally, a U.S. bachelor’s degree, or a foreign equivalent degree, followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree.

• EB-3: The EB-3 category is defined as “skilled workers, professionals, or other workers.” Specifically, “skilled workers” are individuals whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature. “Professionals” are individuals who hold at least a U.S. bachelor’s degree or a foreign equivalent, with the degree being the standard requirement for entry into the intended occupation. Lastly, “unskilled or other workers” are individuals performing unskilled labor requiring less than 2 years of training or experience, not of a temporary or seasonal nature.

Applicants under both the EB-2 and EB-3 categories (excluding EB-2 NIW) require an employer to sponsor them. This means the U.S. employer must first obtain a PERM labor certification from the U.S. Department of Labor’s (DOL) Employment and Training Administration (ETA), confirming there are no qualified U.S. workers available in the area of intended employment, then file a Form I-140 Immigrant Petition for Alien Worker on the applicant’s behalf, and then finally the applicant must file a Form I-485 Adjustment of Status (or Consular Processing).

Importantly, the EB-2 and EB-3 green card application processes apply to both individuals already living in the United States (who may apply for adjustment of status) and those living abroad (who go through consular processing). In either case, applicants must go through the multi-step process of labor certification, immigrant petition, and final visa adjudication, either by USCIS (in the U.S.) or a U.S. consulate abroad.

II. The Three-Stage Process of EB-2/EB-3 Applications

Applying for a green card under the EB-2 or EB-3 category involves a three-stage process that includes both employer and employee participation. Each stage has distinct requirements, responsibilities, and timelines.

• PERM Labor Certification
  • Purpose: The PERM labor certification is issued by the DOL and allows an employer to hire a foreign worker to work permanently in the U.S. Its primary purpose is to demonstrate that there are no qualified U.S. workers willing or available to accept the offered job position, and that employment of the foreign worker will not negatively affect the wages and working conditions of similarly employed U.S. workers.
  • Key steps: The employer must clearly define the job duties, required skills, and minimum qualifications for the job offer. Once that is done, the employer must submit and obtain a prevailing wage determination (Form ETA-9141)—completing mandatory job advertisements and recruitment activities (6 media advertisements required)—and documenting the results of those recruitment efforts. The employer must show good-faith in efforts to recruit U.S. workers and justify why any applicants were rejected or unavailable. After the recruitment process is completed, the employer must file the PERM application (Form ETA-9089) with the DOL.
  • Timeline: The typical timeline for the PERM certification process is approximately 16 months. This can be extended in cases where the application is selected for an audit or supervised recruitment by the DOL.

• I-140 Immigrant Petition
  • Purpose: The Form I-140 Immigrant Petition is filed with USCIS after PERM certification. Its purpose is two-fold: (1) to confirm that the employer has the financial ability to pay the wage offered to the foreign worker, as listed in the PERM certification, and (2) to verify that the foreign worker meets all the minimum education, skills, training, and experience requirements for the offered position.
  • Required documentation: Employer must submit documentation that proves its ability to pay the offered wage is required. This may include federal tax returns, annual reports, or audited financial statements to demonstrate financial capability. The employee (foreign worker) must also submit evidence to confirms eligibility and qualification for the offered position.
  • Filing deadline: The I-140 must be filed within 180 days of PERM approval. If it is not submitted within this window, the PERM certification will expire and the employer must restart the entire process.
  • Typical processing time: Standard processing times for I-140 petitions under the EB-2 category ranges from 7.5 to 9.5 months, while processing times under the EB-3 category ranges from 5 to 14 months. However, if you opt for Premium Processing, USCIS will take action (approval, denial, RFE, or NOID) within the required timeframe.

• I-485 Adjustment of Status (or Consular Processing)
  • Eligibility: After the I-140 is approved, the applicant becomes eligible to file for permanent residency (Form I-485) once their priority date (the date the ETA9089 PERM was filed) becomes current according to the U.S. Department of State’s Visa Bulletin. The priority date must fall within the applicable category in either the Chart A (Final Action Dates) or Chart B (Dates for Filing), depending on USCIS guidance at the time of filing.
  • Key considerations: After I-140 approval, the foreign worker may proceed in one of two ways depending on their location:
    • Adjustment of Status (AOS): If the applicant is already in the United States in a valid nonimmigrant status (such as H-1B or F-1), they may file Form I-485 with USCIS to adjust their status to that of a lawful permanent resident. AOS allows the applicant to remain in the U.S. while their application is processed and provides access to interim benefits, including an Employment Authorization Document (EAD) and Advance Parole (AP) for travel.
    • Consular Processing: If the applicant is outside the U.S., they will undergo consular processing by applying for an immigrant visa through a U.S. embassy or consulate in their home country. Once the immigrant visa is approved, the individual can travel to the U.S. and enter as a lawful permanent resident.
  • Processing time: The processing timeline for I-485 varies depending on USCIS caseload but typically takes 15 to 38 months. Applicants may be required to attend a biometrics appointment or a green card interview.

III. Priority Dates and Visa Bulletin

• Priority Date: One of the most important concepts in the EB-2 and EB-3 green card application process is the priority date (PD), which is essentially your place in line for a green card. The PD is established on the date the PERM labor certification is filed with the DOL. Applicants cannot proceed with the final stage of the green card process (I-485 Adjustment of Status or Consular Processing) until their PD becomes “current,” meaning it falls on or before the date published by the U.S. Department of State in its monthly Visa Bulletin. A simpler way of understanding the PD is through an analogy—think of the PD like taking a number at a deli counter, your turn (to get a green card) won’t come until your number is called (until your PD falls on or before the posted dates on the Visa Bulletin).

• Visa Bulletin: The Visa Bulletin is a monthly publication issued by the U.S. Department of State that determines when applicants for immigrant visas (green cards) can proceed to the final steps of the process. It manages the high demand for both family-based and employment-based green cards by controlling when applicants with specific PDs can either file or receive approval of their final application. The bulletin contains two key charts for each visa category: Chart A (Final Action Dates) and Chart B (Dates for Filing Applications). Chart A shows the dates when the U.S. government is ready to approve/issue green cards—applicants can only be approved if their PD falls on or before the date listed in this chart. Chart B, on the other hand, identifies when applicants may submit their green card applications in preparation for approval, even if visas are not yet available. This allows qualified applicants to begin the Adjustment of Status process early and gain benefits like work and travel authorization while waiting for their Final Action Date to become current. Each month, USCIS announces on its website which chart will be used to accept Adjustment of Status (Form I-485) filings. Typically, applicants must follow Chart A, unless USCIS determines that there are more visas available than there are known applicants for the fiscal year. In that case, USCIS will allow applicants to use Chart B, enabling earlier filings.

• Quotas and Backlogs: The movement and publication of PDs on the Visa Bulletin is largely driven by country-specific quotas. U.S. immigration law limits the number of employment-based green cards available each year and imposes a cap on the number that can be allocated to nationals of any one country—typically around 7% of the total annual allocation. As a result, individuals from countries with high demand, such as India and China, often experience significant backlogs and lengthy wait times. In contrast, individuals from countries with lower demand may see relatively short processing times and faster progression through the visa bulletin.

• Strategies: Given the complexity and fluidity of the Visa Bulletin system, it is important for applicants to monitor updates monthly and understand how the charts apply to their specific case. Applicants should regularly check both the U.S. Department of State’s Visa Bulletin and the USCIS website to confirm which chart is to look at for that month. When the Dates for Filing chart is used, it may allow eligible applicants to submit their I-485 forms earlier, gaining access to interim benefits such as work and travel authorization while awaiting green card approval. Staying informed and prepared—such as by updating required documentation and tracking trends in visa movement—can help applicants act promptly when their priority date becomes current and avoid delays in the final stage of the process.

IV. Employer and Employee Responsibilities

• Employer Obligations: In the EB-2 and EB-3 green card process, the employer plays a central and legally mandated role, particularly during the first two stages, the PERM labor certification and the I-140 petition. The employer is responsible for initiating the process, defining the job offer, determining the minimum qualifications, and conducting recruitment efforts to demonstrate that no qualified U.S. workers are available for the position. All costs associated with the PERM labor certification process—including recruitment advertising, legal fees, and any other costs—are the employer’s responsibility. In the Iworkers obtaine employer is also responsible for providing credible documentation to USCIS to prove its ongoing ability to pay the offered wage from the date the PERM was filed until the foreign worker obtains permanent residence. This typically includes submitting corporate tax returns, audited financial statements, or other relevant documentation. The employer must also be prepared to support the foreign worker throughout the I-140 process, responding to any audits or requests for evidence (RFEs), and maintaining compliance with federal immigration and labor laws.

• Employee Considerations: The foreign worker (employee) plays a more active role during the I-140 and I-485 stages, but still remains responsible in the PERM process. In the PERM process, the employee must provide accurate and verifiable documentation about their educational background, professional experience, and qualifications that the employer uses to draft the job requirements and determine whether the individual meets the minimum qualifications for the offered position. The employee is typically required to submit copies of academic degrees and transcripts, letters from prior employers verifying specific dates of employment, job titles, and duties performed, all of which will be referenced in the PERM application and later validated during the I-140 petition. At the I-140 petition stage, the employee must provide evidence that they meet all minimum qualifications required for the job, as defined in the PERM labor certification. Once the I-140 is approved and the PD becomes current, the employee is responsible for filing Form I-485 (Adjustment of Status) or initiating consular processing, depending on whether they are inside or outside the United States. At this point, the financial and procedural burden shifts to the applicant, who must pay USCIS filing fees, attend biometric appointments, and provide additional documentation such as medical exams, travel history, and proof of continued eligibility. The employee should remain in close communication with the employer and/or legal counsel, monitor visa bulletin updates, and stay compliant with their current immigration status to avoid jeopardizing their green card process.

V. Common Challenges and Best Practices

Some common challenges in the EB-2 and EB-3 green card process arise during the PERM labor certification stage, particularly when an application is selected for a DOL audit or supervised recruitment. These audits can be triggered due to red flags such as overly restrictive job requirements, family relationships between the employer and the applicant, or inconsistent recruitment documentation. A DOL audit can significantly delay processing times and may require the employer to provide detailed evidence of compliance with recruitment rules. Supervised recruitment, which mandates government oversight of all advertising and applicant responses, can be even more time-consuming. To mitigate these risks, employers should maintain meticulous records and ensure strict adherence to all advertising, posting, and recruitment requirements—including placing ads in appropriate outlets, documenting interview outcomes, and maintaining recruitment reports. Any oversight in these areas can result in denial or restart of the entire process.

Another significant hurdle is the unpredictability of priority date movement, especially for applicants from high-demand countries such as India and China. Visa bulletin cutoff dates can advance or retrogress without warning, creating uncertainty in planning the timing of I-485 filings. Applicants should monitor the Visa Bulletin monthly and work closely with their legal representatives to ensure they are ready to act quickly when their date becomes current. Given the complexity of the EB-2/EB-3 process, it is highly advisable to seek experienced immigration counsel, especially in cases involving complex job requirements, gaps in employment history, foreign degrees, or prior immigration violations. Legal experts can help ensure that documentation is consistent and complete, minimize the risk of denials or RFEs, and provide guidance tailored to each case.

If you’re looking to file for the EB-1A and/or NIW visa classifications, our team can help. For personalized guidance and assistance, please feel free to reach out to our team at Meng Law Group. You may also contact us via phone at (626) 339-9363 or email us directly at info@menglawgrp.com.

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Legal Disclaimer

This article is for informational purposes only and does not constitute legal advice. Reading any content on our website does not create an attorney-client relationship. For legal guidance tailored to your specific situation, consult a qualified immigration attorney.