Verified against official sources — 1 Nov 2026
Employment-Based Green Cards, Explained: PERM, I-140 and I-485
NEW Published 1 November 2026
A plain-English guide for H-1B workers and their employers — the five preference categories, the three filings of the employer-sponsored track, and why the wait for a visa number is usually the longest part.
Most employer-sponsored green cards follow the same spine. First, your employer usually completes PERM labour certification, in which the Department of Labor certifies that there are not sufficient U.S. workers able, willing, qualified and available for the job, and that hiring you will not adversely affect similarly employed U.S. workers. Second, your employer files Form I-140, the immigrant petition — the filing that fixes your priority date, your place in the queue. Third, when a visa number becomes available for your category and country, you finish with Form I-485 if you are in the United States, or an immigrant visa interview abroad if you are not. Roughly 140,000 employment-based immigrant visas are available each fiscal year across five preference categories, and because demand from some countries far exceeds the per-country limits, for many India-born workers the wait between stages two and three — not the paperwork — is the process.
SECTION 01What an Employment-Based Green Card Actually Is
USCIS describes the employment-based route this way: "Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills." Those visas are divided among five preference categories, EB-1 through EB-5 (Section 02). The fiscal year runs from 1 October to 30 September.
The 140,000 figure is a baseline, not a fixed yearly total. Unused family-sponsored numbers from one fiscal year are added to the next year's employment-based limit, which is why the State Department set the worldwide employment-based level for fiscal year 2026 at 186,317. Either way, the numbers are set by Congress — a constraint USCIS notes only Congress can alleviate.
Three agencies run the process, each deciding a different question. The Department of Labor asks whether the U.S. labour market needs protecting for this job. USCIS asks whether the petition — and later your own application — should be approved. The Department of State manages the monthly supply of visa numbers and issues immigrant visas abroad. Some categories require a permanent job offer from a U.S. employer, who becomes your sponsor and petitioner; where no job offer is required, USCIS confirms you may file a petition on your own behalf.
SECTION 02The Five Preference Categories
Every employment-based case sits in one of five categories, which decide what must be proved, whether a labour certification is needed, and which slice of the annual numbers it draws from.
Priority workers
People of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; and certain multinational managers and executives. No labour certification is required. Extraordinary-ability applicants may petition for themselves.
Advanced degrees and exceptional ability
Professionals holding an advanced degree or its equivalent, and people of exceptional ability in the sciences, arts or business. A labour certification is normally required — unless the occupation is on Schedule A, or USCIS grants a national interest waiver of the job offer.
Professionals, skilled and other workers
Professionals whose job requires at least a bachelor's degree; skilled workers whose job requires at least two years of training or experience; and "other workers" in jobs requiring under two years, not temporary or seasonal. A labour certification is required unless the occupation is on Schedule A.
Special immigrants
Defined groups such as certain religious workers, employees of U.S. foreign service posts, retired employees of international organisations, and alien minors who are wards of courts in the United States. Petitions generally use Form I-360 rather than Form I-140. No labour certification.
Investors
Investors who put $1,050,000 — or $800,000 in a targeted employment area — into a new commercial enterprise that employs at least 10 full-time U.S. workers. No labour certification and no employer sponsor: the investment is the case.
An advanced degree is a degree above a bachelor's, and USCIS treats a bachelor's followed by at least five years of progressive experience in the specialty as the equivalent of a master's. Exceptional ability means "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business," shown by meeting at least three of the six criteria USCIS lists. For a national interest waiver, USCIS weighs whether the proposed endeavour has substantial merit and national importance; whether the person is well positioned to advance it; and whether, on balance, waiving the job offer and labour certification would benefit the United States.
The annual numbers are shared by percentages set in the Immigration and Nationality Act: 28.6% each to EB-1, EB-2 and EB-3; 7.1% each to EB-4 and EB-5. Unused numbers flow down — from EB-4 and EB-5 to EB-1, then to EB-2, then to EB-3 — so each category also receives numbers not required in the categories ahead of it. Within EB-3, no more than 10,000 numbers may go to "other workers." Within EB-5, 32% of the numbers are reserved — 20% for rural areas, 10% for high-unemployment areas and 2% for infrastructure projects.
SECTION 03Step 1: PERM Labour Certification
For EB-2 and EB-3 cases that need one, the process starts with the labour certification, known as PERM — a stage that belongs entirely to the employer. The Department's Office of Foreign Labor Certification runs it, and the employer must be a U.S. employer with a valid federal employer identification number and a U.S. location.
What is being tested is the job, not you. Before certifying, the Department of Labor must determine that "there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment," and that employing the foreign worker "will not adversely affect the wages and working conditions of similarly employed U.S. workers." USCIS states the same test with the wage attached: insufficient available, qualified, able and willing U.S. workers to fill the position at the prevailing wage rate or higher.
No labour certification is required for any EB-1 case, for EB-4 special immigrants, or for EB-5 investors. Inside EB-2 and EB-3 there are two further exceptions. Schedule A occupations — Group I covers professional nurses and physical therapists; Group II covers exceptional ability in the sciences or arts, including college and university teachers, and in the performing arts — are occupations the Department has designated as having insufficient U.S. workers, so the petition instead carries an uncertified Form ETA-9089 with a valid prevailing wage determination tracking number. An EB-2 national interest waiver waives the job offer itself, and with it the labour certification; the petition includes Form ETA-9089, Appendix A instead.
SECTION 04Step 2: Form I-140, the Immigrant Petition
With a certified PERM in hand — or in a category that skips it — the employer files Form I-140, Immigrant Petition for Alien Workers, with USCIS. The petition must include a signed Form ETA-9089 approved by the Department of Labor; for labour certifications filed through FLAG on or after 1 June 2023, that means an approved and signed ETA-9089 Final Determination. Two groups may file the I-140 themselves instead: EB-1 applicants of extraordinary ability, and EB-2 applicants seeking a national interest waiver.
One deadline is unforgiving, stated by USCIS in deadline terms: "all labor certifications expire 180 days from the date of certification. We must receive any Form I-140 based on an approved labor certification before the 180-day validity period has elapsed."
The petition is also where the employer must prove it can pay. For the EB-1, EB-2 and EB-3 classifications that require a job offer, USCIS guidance requires the employer to demonstrate its continuing ability to pay the proffered wage as of the priority date, continuing until the beneficiary obtains lawful permanent residence. The standard evidence is annual reports, federal tax returns or audited financial statements for each available year from the priority date. Employers with 100 or more workers may instead submit a statement from a financial officer, and USCIS also recognises payroll records showing the worker has been paid at least the proffered wage.
The most durable thing this stage produces is your priority date. USCIS's rule: if a labour certification is required, the priority date is the date the Department of Labor accepted the labour certification application for processing — for a PERM application filed on or after 28 March 2005, the earliest date it is filed with the Department. Where no labour certification is required, the priority date is generally the date USCIS accepts the petition for processing. That date follows you: under 8 CFR 204.5(e), a person who is the beneficiary of multiple approved employment-based petitions may use the earliest priority date, with some exceptions — which is why a later EB-1 or EB-2 petition can carry the queue position of an older EB-3 filing.
SECTION 05Step 3 Starts With a Wait: the Visa Number
An approved Form I-140 is not a green card. Before the final stage can be granted, an immigrant visa number must be immediately available for your priority date, your category and your country of chargeability — usually your country of birth. The State Department publishes the supply monthly in the Visa Bulletin, allocating numbers in chronological order of priority date until the annual limit is reached. Our companion guide walks through the bulletin itself: How to Read the Visa Bulletin.
Each bulletin carries two employment-based charts. The Final Action Dates chart shows when a visa can actually be issued, or an adjustment approved. The Dates for Filing chart shows when applications may be submitted. If you are adjusting status, you do not choose between them: USCIS designates each month which chart adjustment applicants must use — for October 2026 it designated the Dates for Filing chart for employment-based preference filings. When the chart USCIS designates shows "C" for your category and country, or a date later than your priority date, you may file Form I-485 if you are otherwise eligible.
Why some countries wait so much longer is arithmetic, not discretion. Section 202 of the Immigration and Nationality Act sets the per-country limit at 7% of the annual family-sponsored and employment-based preference limits combined — 28,862 in fiscal year 2026. USCIS emphasises that the limit applies to the two systems combined, not category by category; the countries currently exceeding it are China, India, Mexico and the Philippines. India is one of the oversubscribed chargeability areas to which the bulletin's prorating provisions currently apply.
A dated snapshot of what that means in practice: in the September 2026 Visa Bulletin, the Final Action Date for India stood at 15 October 2022 in EB-1; EB-2 for India was marked "U," meaning visa numbers were not authorised for issuance that month; and EB-3 for India stood at 1 January 2014. The State Department's own description of oversubscribed categories is blunt: "In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached." Bulletin dates move every month, and they can move backwards. No official source supports a forecast of when any particular date will advance, and this guide offers none.
H-1B admission normally totals no more than six years, but USCIS describes the exemption Congress built for exactly this position: a person who is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant petition, and who would be eligible to become a permanent resident but for the per-country limitation, may be granted further periods of H-1B status in increments of up to three years beyond the six-year limit.
SECTION 06The Finish: Form I-485 Adjustment, or Consular Processing
When your number is available, the case finishes in one of two places. If you are in the United States, you apply to adjust status on Form I-485, Application to Register Permanent Residence or Adjust Status. If you are outside the United States, USCIS is direct: "you must obtain your visa outside the United States through consular processing."
Adjustment has its own eligibility gate, set by section 245(a) of the Act. In USCIS's summary, you must have been inspected and admitted, or inspected and paroled; have properly filed the application; be physically present; be eligible to receive an immigrant visa; have one immediately available both at filing and at final decision; be admissible to the United States, or eligible for a waiver or other relief; and merit a favourable exercise of discretion. That last element — discretion — carries new weight in 2026; see Section 07.
If a visa is available for your priority date and you are otherwise eligible, you may file Form I-485 at the same time as the immigrant petition, or while it is pending — USCIS calls this "concurrent filing." It does not jump the queue: a visa must still be immediately available at final adjudication before USCIS can approve.
The consular route runs through the State Department. After USCIS approves the petition, the case is sent to the National Visa Center, which assigns it a case number. When your priority date meets the most recent qualifying date, the Center instructs you to choose an agent using Form DS-261; you then pay the required processing fees and submit the immigrant visa application, Form DS-260, with the required civil documents, followed by an interview and a medical examination.
Your family finishes with you. The State Department confirms that your spouse and minor unmarried children, younger than 21, may apply for immigrant visas with you as derivatives; in adjustment, USCIS confirms that the spouse and children of an employment-based applicant may obtain permanent residence through their relationship with you. In EB-2, an approved petition can make a spouse eligible for E-21 status and unmarried children under 21 for E-22 status.
On timing, this guide prints no estimates. USCIS publishes case processing times by form type and office; those figures describe agency processing only, and say nothing about the visa-number wait in Section 05, which for oversubscribed countries is usually the longer clock.
SECTION 07A 2026 Development: Adjustment of Status and Discretion
Adjustment of status has always ended in discretion. In 2026 USCIS put new weight on that element, and anyone planning to adjust status should know it exists.
On 22 May 2026, USCIS announced Policy Memorandum PM-602-0199, titled "Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process." The memorandum reiterates that, "consistent with long-standing immigration law and immigration court decisions, aliens seeking adjustment of status must do so through consular processing via the Department of State outside of the country," and that "Officers are directed to consider all relevant factors and information on a case-by-case basis when determining whether an alien warrants this extraordinary form of relief." A USCIS spokesman put the agency's position plainly: "From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances."
As checked on 1 November 2026, USCIS's Adjustment of Status page still describes adjustment as the process for applying for permanent residence while present in the United States, the Section 06 eligibility list is unchanged, and USCIS still publishes monthly filing charts — designating the Dates for Filing chart for employment-based filings in October 2026. The announcement raises the discretionary stakes of an adjustment application; it does not close the filing route those pages administer. Because the announced approach weighs all relevant factors in an applicant's record on a case-by-case basis, anyone with complexity in their immigration history should take legal advice before filing.
SECTION 08While Your Form I-485 Is Pending
Filing Form I-485 changes your practical position even before it is decided: USCIS lists benefits an employment-based adjustment applicant may seek while it is pending.
Work authorisation that is not tied to your employer. You may apply for employment authorisation which, if granted, "is not tied to a particular employer, position, or job classification," and which USCIS says is currently granted in increments of up to five years. A spouse or child who has filed their own Form I-485 as your derivative is an applicant in the same position, and may apply on the same basis.
Advance parole for travel. You may apply for advance parole, which, if granted, authorises you to travel outside the United States during its validity period — also currently up to five years — and to apply for parole into the United States on your return "without abandoning your adjustment of status application." The protection comes from the advance parole document, not from the pending application alone, so take advice before travelling on a pending Form I-485.
Authorised stay. While it is pending, USCIS states that you are generally considered to be "in a period of stay authorized," and would not accrue unlawful presence during it.
Job portability after 180 days. This is the protection the American Competitiveness in the Twenty-First Century Act (AC21) is best known for. In USCIS's words: "If your employment-based adjustment of status application has been pending with USCIS for 180 days or more, you may request to 'port' the underlying job opportunity upon which your adjustment is based to a new employer or new job offer that is the same or similar to the original one without the portability request alone impacting your priority date." The request is made with Form I-485 Supplement J, the form USCIS titles "Confirmation of Valid Job Offer or Request for Job Portability Under INA Section 204(j)." Retrogression, a request for evidence, a notice of intent to deny, or the scheduling of an interview does not reset the 180-day portability clock.
SECTION 09Who Controls What: You, Your Employer, the Government
Most frustration comes from a mismatch of control: the steps that start the case are not yours to file, while the protections that preserve your place mostly are. The honest map:
Owns stages one and two
The PERM is the employer's application, for the employer's job: the employer defines it, recruits for it, attests and files. Form I-140 is likewise the employer's petition, and the employer must evidence its ability to pay the proffered wage. A new employer cannot adopt either filing — a job change before you file Form I-485 normally means a fresh PERM and a fresh I-140.
Own the queue position and the finish
The priority date attaches to you as the beneficiary, and your earliest priority date can be retained across multiple approved petitions, with some exceptions. You file your own Form I-485 when a number is available, you request portability once it has been pending 180 days, and it is your own admissibility — and, under Section 07, your whole record — that the final decision judges.
Sets the numbers, decides each stage
The Department of Labor certifies the labour-market test. USCIS decides the petition and the adjustment application. The State Department rations the monthly visa numbers. The annual totals and the 7% per-country limit are set by Congress — which USCIS notes is the only body that can change them.
FAQFrequently Asked Questions
Can I start the green card process myself, without an employer?
For the standard EB-2 and EB-3 route, no: PERM is the employer's application, and Form I-140 is filed by a U.S. employer on your behalf. Two groups may file the I-140 themselves — EB-1 applicants of extraordinary ability, and EB-2 applicants seeking a national interest waiver, which also removes the PERM stage. The final application, Form I-485, is always your own filing.
How much does it cost?
This guide prints no fee figures, deliberately. USCIS filing fees for forms such as the I-140 and I-485 are set in the USCIS Fee Schedule, Form G-1055, and they change over time; the fee-schedule table could not be read in full when this guide was verified, so a figure printed here could mislead — check the current amount before filing. USCIS does state on its Form I-140 page that filing fees are final and non-refundable.
How long will the whole process take?
There is no honest single answer, because two different clocks run. The first is agency processing — PERM at the Department of Labor, then the I-140 and I-485 at USCIS — for which the agencies publish processing times that change over time. The second is the visa-number queue: your priority date against the Visa Bulletin for your category and country of chargeability. The State Department warns that in heavily oversubscribed categories there may be a waiting period of several years before a priority date is reached. Anyone who promises a completion date is guessing; this guide makes no prediction.
Can my spouse work while our case is pending?
Your spouse and unmarried children under 21 are derivatives on your case. Once your spouse has their own Form I-485 pending as a derivative applicant, they may apply for employment authorisation that is not tied to a particular employer, position or job classification — the same interim benefit described in Section 08. Before the Form I-485 stage, a spouse's right to work depends on their own status; the position of an H-4 spouse follows separate rules covered in our H-4 dependents guide.
If I change employers, do I lose my place in the queue?
Two protections apply at two different stages. The priority date can be retained across petitions: under 8 CFR 204.5(e), a beneficiary of multiple approved employment-based petitions may use the earliest priority date, with some exceptions — so a new employer's PERM and I-140 do not by themselves send you to the back of the line. Separately, once your Form I-485 has been pending for 180 days or more, AC21 portability lets you move the underlying job opportunity to a new employer or a new job offer in the same or similar occupational classification, requested with Form I-485 Supplement J, without the portability request alone impacting your priority date.
Official references and verification status
These references were accessed and checked on 1 November 2026 (see the accompanying sources file for the claim-by-claim record): the USCIS permanent workers and EB-2 pages for the categories, labour certification and the national interest waiver; the Department of Labor's PERM page for the certification standard and filing steps; the USCIS Form I-140 page for the 180-day labour certification validity rule; the USCIS Employment-Based Adjustment of Status FAQs for interim benefits, portability, priority-date retention and the per-country limit; the USCIS adjustment of status page; the Department of State's employment-based immigrant visa page and the September 2026 Visa Bulletin for category allocations, the per-country limit figure and the India dates quoted (a dated snapshot, not current dates); and USCIS's news release of 22 May 2026 for the adjustment-of-status discretion memorandum in Section 07. Limits: no USCIS filing-fee figures are printed, because the fee schedule (Form G-1055) table could not be read in full; the full text of Policy Memorandum PM-602-0199 was not among the official pages read, so Section 07 rests on USCIS's news release and its live operational pages; and nothing here forecasts Visa Bulletin movement, because no official source supports one.
- USCIS — Employment-Based Immigration (Permanent Workers)
- USCIS — Employment-Based Immigration: Second Preference EB-2
- U.S. Department of Labor, Office of Foreign Labor Certification — PERM (Permanent Labor Certification)
- USCIS — Form I-140, Immigrant Petition for Alien Workers
- USCIS — Form I-485, Application to Register Permanent Residence or Adjust Status
- USCIS — Adjustment of Status
- USCIS — Employment-Based Adjustment of Status FAQs
- U.S. Department of State — Employment-Based Immigrant Visas
- U.S. Department of State — Visa Bulletin for September 2026
- USCIS News Release (22 May 2026) — Adjustment of status announcement, Policy Memorandum PM-602-0199
General educational information, not individualized legal advice. Consult a qualified U.S. immigration attorney for case-specific questions.
General information only. This guide is based on official sources publicly available and checked on the date shown on this page. Visa rules change, and consular and USCIS officers decide every case on its own facts — nothing here is a confirmation or a guarantee for your individual case, and this is not legal advice. Always confirm the current requirement on the official page linked in this guide before you act, and consider a qualified immigration attorney for your specific situation.