PERMANENT RESIDENCY THROUGH EMPLOYMENT

An employment-based green card is lawful permanent residence granted through a job, a business, or professional achievement rather than through a family relationship. U.S. immigration law divides it into five preference categories, EB-1 through EB-5, and each one carries its own eligibility standard, its own petition form, and its own waiting line.

Most cases begin with an employer filing Form I-140. Some do not require an employer at all. Which route fits depends far more on the strength of the evidence than on the job title printed on an offer letter.

EB-1 covers people of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. EB-2 covers advanced degree professionals and people of exceptional ability. EB-3 covers professionals, skilled workers, and other workers. EB-4 covers special immigrants, including religious workers. EB-5 covers immigrant investors.

The categories are ranked, and the ranking matters in practice because visa numbers flow to the higher preferences first. A person who qualifies for two categories is usually better served by the higher one, even when the evidence burden is heavier.

It depends almost entirely on the category and the country of birth. Under the September 2026 Visa Bulletin, EB-1 is current for most of the world, EB-3 sits at a September 1, 2024 final action date worldwide, and EB-2 for applicants born in India is listed as unavailable. Waits range from roughly a year to more than a decade.

Three separate clocks stack on top of each other. The Department of Labor stage, if the case needs one. The USCIS petition stage. Then the visa number itself, which is governed by the monthly Visa Bulletin and by the applicant’s country of birth rather than citizenship.

That third clock is the one nobody controls. It moves forward, it stalls, and occasionally it moves backward.

PERM is the Department of Labor process in which an employer tests the U.S. job market and certifies that no able, willing, and qualified American worker is available for the position at the prevailing wage. Most EB-2 and EB-3 cases require it. As of late summer 2026, DOL was adjudicating PERM applications filed in November 2025.

Before the PERM application itself can be filed, the employer needs a prevailing wage determination, and DOL was working through requests filed around May 2026. Recruitment runs in between. Add it up and the labor certification stage alone is realistically a year to eighteen months before the I-140 is even submitted.

Employers should also know that the regulations require the employer to pay the costs of PERM recruitment and the related attorney fees. Those costs cannot be passed to the employee.

Yes, through three routes. An EB-2 National Interest Waiver lets a professional self-petition by showing the waiver of the job offer benefits the United States. EB-1A extraordinary ability also allows self-petition. EB-5 requires a qualifying investment rather than an employer. Everything else needs a sponsoring employer.

Self-petitioning sounds appealing and it is genuinely the right answer for some people. It is also where we see the most over-optimistic filings. The absence of an employer does not lower the standard. It moves the entire evidentiary burden onto the individual.

A National Interest Waiver removes the job offer and labor certification requirements from an EB-2 petition. USCIS applies a three part test. The proposed endeavor must have substantial merit and national importance, the petitioner must be well positioned to advance it, and waiving the job offer must on balance benefit the United States.

Researchers, physicians, engineers, founders, and specialists in fields tied to public health, national security, infrastructure, or economic development are the usual candidates. Advanced degrees help. They do not by themselves satisfy any of the three prongs, which is a misunderstanding we correct in a lot of first consultations.

USCIS also tightened how these are adjudicated in a January 2025 policy update. The legal standard from Matter of Dhanasar did not change, but officers now confirm the underlying EB-2 qualification before reaching the waiver, look for a specific and tangible proposed endeavor rather than a general field of work, and weigh documentary evidence ahead of expert opinion letters. Petitions drafted the way they were drafted a few years ago are drawing more requests for evidence.

EB-2 requires an advanced degree, or a bachelor’s degree plus five years of progressive experience, or exceptional ability. EB-3 covers positions requiring a bachelor’s degree, skilled positions requiring at least two years of training or experience, and unskilled positions. Both normally require PERM labor certification.

The counterintuitive part is that EB-3 sometimes moves faster. For applicants born in India, EB-3 has at times held a later cutoff date than EB-2, and a case can be downgraded or upgraded between them where the underlying job qualifies. That decision should be made with the current bulletin in front of you rather than on general reputation.

Often yes. Once an I-485 adjustment application has been pending for at least 180 days and the underlying I-140 is approved, the American Competitiveness in the Twenty-First Century Act allows the beneficiary to move to a new job in the same or a similar occupational classification without losing the case.

Timing is everything here. Changing employers before that 180 day mark, or into a materially different occupation, can undo years of work. Anyone weighing an offer mid-process should have the file reviewed before resigning, not after.

Only when a visa number is immediately available for the category and country of birth under the Visa Bulletin in effect that month. When it is, concurrent filing is usually the right move, because the adjustment application brings work authorization and advance parole for the applicant and qualifying family members.

When the priority date is not current, the I-140 goes first and the I-485 waits. That gap is where a lot of families get stuck, and it is also why maintaining valid nonimmigrant status during the wait matters so much.

One caution that is newer than most online guidance reflects. Since the May 2026 policy memorandum on adjustment discretion, filing the I-485 is no longer the low-risk step it once was for applicants with any gap in status or any unauthorized work in their history. Worth reviewing before filing rather than after.

Yes for Form I-140. USCIS guarantees action within 15 calendar days for most I-140 classifications, and within 45 calendar days for EB-1C multinational executives and managers and for EB-2 National Interest Waiver petitions. Premium processing does not speed up PERM, the Visa Bulletin, or the final green card.

It buys an answer, not a green card. For someone whose priority date is years away, paying for premium processing on the I-140 rarely changes the finish date, though it can matter for an H-1B extension beyond the sixth year.

Retrogression means the cutoff date in the Visa Bulletin moves backward, so applicants who were current become ineligible to receive a green card until the date advances again. A pending I-485 is not denied. It simply waits, and work authorization and travel documents can be renewed while it does.

Two 2025 changes make that wait riskier than it used to be. USCIS eliminated the automatic extension of expiring work permits for renewals filed on or after October 30, 2025, and cut the maximum validity of many employment authorization documents from five years to 18 months as of December 5, 2025. A renewal filed too late is now a real gap in work authorization rather than a paperwork inconvenience. Calendar the renewal the day the card is issued.

Retrogression itself is not rare. The September 2026 bulletin lists EB-2 for India as unavailable, and EB-5 unreserved for India as unavailable as well. Anyone planning around a date that looks current today should build in the possibility that it will not be current next month.

No, and this is the most consequential change of 2026. On May 21, 2026 USCIS issued policy memorandum PM-602-0199, reframing adjustment of status as an extraordinary form of discretionary relief rather than a near-automatic approval for an eligible applicant. Officers weigh positive and negative discretionary factors under a totality of the circumstances test even when every statutory requirement is satisfied.

Risk is not spread evenly across categories. Holders of dual intent classifications, meaning H-1B, L-1, TN, O-1, E-2 and E-3, are comparatively well positioned. F-1 students, especially in day one CPT arrangements, parole-based applicants, and anyone whose record suggests preconceived immigrant intent draw the sharpest scrutiny. Unauthorized work, status violations and overstays now carry more weight than they used to.

In practice an I-485 has to make an affirmative case rather than simply establish eligibility. Length of residence, tax compliance, family and community ties, employment stability and a clean immigration history all belong in the record. The memo is widely expected to be challenged in court. Until it is stayed, it governs.

The 2022 public charge regulation was rescinded effective September 18, 2026. In its place USCIS applies the statute, new policy guidance and officer discretion under a totality of the circumstances test, and officers may weigh a broader range of benefits than the prior rule allowed. It reaches both adjustment applicants and immigrant visa applicants abroad.

Employment-based applicants tend to be well positioned here, because a job offer, a salary and a documented work history are close to exactly what the test asks for. That is not the same as being exempt. Practitioners are expecting a meaningful rise in requests for evidence while officers work through the new framework.

Assemble the record now rather than after an RFE lands. Pay statements, tax returns, employment verification, bank statements, proof of assets, health insurance, education records and professional licenses.

The entry restrictions do. The benefit holds no longer do. The proclamation effective January 1, 2026 still suspends entry for nationals of 19 countries in full and 19 more in part. The separate USCIS policy that froze adjudication of their pending petitions and applications was struck down and lifted on August 28, 2026.

The sequence matters because it is still moving. A federal court vacated the adjudication hold in Dorcas International Institute of Rhode Island v. USCIS on June 5, 2026, a further injunction issued in Red Eagle Law v. Edlow on August 24, and USCIS announced compliance four days later. That relief is temporary and pending further litigation. A separate suspension of immigrant visa issuance for nationals of 75 countries was also vacated, and the State Department resumed immigrant visa processing on September 10, 2026.

What survives is the entry ban itself, with its original exceptions. Lawful permanent residents, people already in the United States on the effective date, holders of visas issued before it, and dual nationals traveling on a passport from a country that is not designated. No visa issued before the effective date was revoked. Anyone affected should have the case checked against the current posture rather than against a headline from earlier in the year.

The minimum is $1,050,000, reduced to $800,000 for an investment in a targeted employment area, which means a rural area, an area of high unemployment, or an infrastructure project. The investment must create or preserve at least ten full-time jobs for U.S. workers. Those amounts are scheduled to adjust in 2027.

One date currently matters more than the amounts. The grandfathering protection written into the EB-5 Reform and Integrity Act sunsets on September 30, 2026. Petitions filed by that date stay protected if the program later lapses or the rules change. Petitions filed after it do not carry that protection. The Regional Center Program itself is authorized through September 30, 2027, so nothing shuts down, but the safety net is thinner for later filers.

The Act also set aside a share of EB-5 visas for rural, high unemployment, and infrastructure projects, and those set-aside categories have generally remained current while the unreserved category has not. For investors born in India or mainland China, that difference is often the whole decision.

Sometimes, and the rules changed sharply in August 2026. The Board of Immigration Appeals decided Matter of Delcarmen-Lara, overruling thirteen years of precedent and holding that travel on advance parole counts as a departure. A DACA recipient who accrued unlawful presence before receiving DACA can now trigger the three or ten year bar by leaving the country.

Before that decision, advance parole travel was the standard way to create a lawful entry and open the door to adjustment of status inside the United States. That door is not closed, but for many people it now has a bar attached and may require a waiver filed with the adjustment application. The decision applies to cases filed after August 13, 2026.

Separately, USCIS accepts initial DACA requests but cannot grant them under the court order in effect, while renewals continue to be processed. Nobody holding DACA should book international travel without a case review first. The cost of getting this one wrong is measured in years.

No. An approved I-140 can be completed through consular processing at a U.S. embassy or consulate abroad instead of adjustment of status inside the country. The National Visa Center handles the documentary stage and the final interview happens overseas. Immigrant visa processing was paused worldwide on August 21, 2026 while consular officers were trained on the new public charge guidance, and it resumed on September 10, 2026.

The 75-country immigrant visa suspension announced in January 2026 was vacated in court, so that route is open again. The expanded travel ban effective January 1, 2026 still restricts entry for nationals of the designated countries, which is a separate question from whether a visa can be processed.

Choosing between the two paths is harder now than it was a year ago. Adjustment allows interim work authorization and travel documents, but USCIS reframed adjustment as extraordinary discretionary relief in May 2026, which raised the bar for it. Consular processing sidesteps that discretion analysis but requires leaving the country, and leaving carries its own risks depending on status history. We look at both, and since May the answer flips more often than it used to.

Employment-based cases fail on paperwork far more often than on merit. A prevailing wage misclassification, a job description that does not match the actual role, an I-140 filed in the wrong category, or a departure taken at the wrong moment can cost years that no amount of later argument recovers.

Kazmi & Sakata has practiced immigration and nationality law in San Diego since 2004, handling employer petitions, National Interest Waivers, investor cases, and consular processing for clients across California and around the world. Call (858) 874-0711 or email info@ksvisalaw.com to have a case reviewed before a filing deadline forces the decision.