United States skilled worker immigration

United States skilled worker immigration is one of the most common routes to a United States green card for workers with skills, professional qualifications or extraordinary achievements. The United States immigration system classifies immigrant workers into 5 preference groups (Employment-Based Preference — EB), with an annual immigrant visa quota under the United States Immigration and Nationality Act (INA).

This article analyses in detail the EB-1, EB-2 (including the EB-2 NIW) and EB-3 categories — the three main skilled groups Vietnamese workers can access. Each category has different conditions, processes, employer sponsorship requirements and waiting times. Understanding the differences clearly is the first step in building a settlement route that suits an individual profile.

An overview of the United States employment-based immigration system

The United States employment immigration system is governed byUnited States Citizenship and Immigration Services (USCIS), the United States Department of Labor (DOL) and the United States Department of State (DOS). Each year, the United States Congress allocates around 140,000 employment-based immigrant visas across 5 preference groups:

• EB-1: priority workers (around 28.6% of the quota, ~40,000 visas a year)
• EB-2: professionals with advanced degrees or exceptional ability (~28.6%, ~40,000)
• EB-3: skilled workers, professionals and other workers (~28.6%, ~40,000)
• EB-4: special immigrants (~7.1%, ~10,000)
• EB-5: investors (~7.1%, ~10,000)

Each country is limited to a maximum of 7% of the total quota, leading to long backlogs for workers from populous countries such as India and China. Vietnam is not currently subject to the per-country limit for EB-1, EB-2 and EB-3, so waiting times are comparatively shorter.

The three main categories Vietnamese workers may aim for are EB-1, EB-2 (including the National Interest Waiver) and EB-3. Each has its own criteria on qualifications, experience, achievements and the requirement for a United States employer sponsor.

The EB-1 category — priority workers

EB-1 has the highest standard but requires no PERM Labor Certification, so it has the fastest processing in the skilled system. According toUSCIS – Employment-Based Immigration: First Preference EB-1, this category divides into 3 subgroups with different criteria.

EB-1A: Extraordinary Ability

For individuals of extraordinary ability in the sciences, arts, education, business or athletics. The standout features of EB-1A:

• Self-petition is permitted — no United States employer is needed
• No specific job offer is required
• No PERM Labor Certification is required

The basic condition is proving “sustained national or international acclaim” in the field. Applicants must meet 1 of 2 criteria:

1. Holding one major international award (such as a Nobel Prize, an Oscar, an Olympic medal or a Pulitzer)
2. Meeting at least 3 of 10 secondary criteria, comprising: receiving national or international awards, membership of a prestigious professional association, coverage in the trade press, serving as a judge of the work of peers, making recognised original contributions, publishing scholarly articles, exhibiting work at major exhibitions, holding a leading role at a distinguished organisation, commanding an outstandingly high salary, or achieving commercial success in the performing arts.

The EB-1A application is filed throughVisa EB-1with Form I-140 (Petition for Alien Worker).

EB-1B: outstanding professors and researchers

For professors and researchers with international achievements in a specific academic field. The conditions:

• At least 3 years’ teaching or research experience
• A long-term or tenure-track research job offer in the United States
• The United States employer must file the petition on the applicant’s behalf
• Meeting 2 of 6 criteria evidencing outstanding research achievement

EB-1B requires no PERM Labor Certification but does need a sponsoring employer, differing from the self-petitioning EB-1A.

EB-1C: multinational managers and executives

For senior managers or executives of a multinational company being transferred to a United States office. The conditions:

• Having worked for the foreign company for at least 1 of the 3 most recent years in a managerial or executive role
• Being transferred to work at the parent, branch or subsidiary in the United States
• The United States company must have been operating for at least 1 year before the petition is filed
• No PERM Labor Certification required

EB-1C suits Vietnamese business executives whose company has a United States subsidiary or who are being transferred to the United States on an L-1A (non-immigrant) visa.

The EB-2 category — professionals with advanced degrees or exceptional ability

EB-2 is the common category for professionals with a postgraduate qualification or exceptional ability in their field. Details of this category can be found in the in-depth article onVisa EB-2.

the standard EB-2

The conditions for qualifying for EB-2 through an employer:

Group 1 — Advanced Degree:

• Holding a master’s, doctorate or higher qualification in a related field
• OR holding a bachelor’s degree plus at least 5 years’ post-degree professional experience

Group 2 — Exceptional Ability:

• Proving knowledge and skills significantly above the ordinary level in the sciences, arts or business
• Meeting at least 3 of 6 specific criteria

The standard EB-2 requires:

• A sponsoring United States employer
• A job offer for a position requiring EB-2 level qualifications
• Completing the PERM Labor Certification process before filing the I-140

EB-2 National Interest Waiver (NIW)

This is a special route allowing the employer and PERM Labor Certification requirements to be waived where the applicant proves their work brings substantial national benefit to the United States.

Under the precedent of Matter of Dhanasar (2016), USCIS assesses the EB-2 NIW against 3 criteria:

1. The work has Substantial Merit and National Importance: the field of work must have broad significance for United States society, not merely for an individual or a company
2. The applicant is Well-Positioned to carry out the work: having the qualifications, experience, plan and capacity to carry out the proposed work
3. The national benefit outweighs the benefit of the PERM process (Beneficial to Waive): the United States gains by waiving the PERM requirement and allowing the applicant to work in the United States

The EB-2 NIW permitsself-petitionwithout a specific job offer. This is a strategic choice for professionals in STEM, healthcare, agriculture and research who can prove a contribution to the national interest of the United States. Details of this category are atVisa EB-2 NIW.

The EB-3 category — skilled workers, professionals and other workers

EB-3 has the lowest standard within the skilled group, suiting most Vietnamese workers who do not reach EB-1 or EB-2 level. This category divides into 3 subgroups. Full details are atVisa EB-3.

EB-3 Skilled Workers

• Jobs requiring at least 2 years’ experience or training
• Examples: carpenters, welders, professional chefs, electricians, technicians, certified cooks, bakers
• PERM Labor Certification required

EB-3 Professionals

• Requires at least a bachelor’s degree or equivalent (experience is usually not accepted in place of the qualification)
• The qualification must come from a recognised 4-year programme
• PERM Labor Certification required

EB-3 Other Workers

• Jobs requiring less than 2 years’ experience or training
• Examples: restaurant workers, hotel staff, farm workers, factory workers
• PERM Labor Certification required
• A separate quota of only 10,000 visas a year, leading to a serious backlog

Schedule A — PERM exemption for shortage occupations

Certain occupations identified by the United States Department of Labor as being in shortage are placed on Schedule A and are exempt from the PERM Labor Certification requirement. Schedule A Group I comprises:

• Professional Nurses
• Physical Therapists

Those qualifying under Schedule A may file EB-2 or EB-3 directly with Form I-140 without going through PERM, considerably reducing processing time (from 2-3 years to 6-12 months).

The PERM Labor Certification process

PERM is the compulsory first step for the standard EB-2 and for EB-3 (apart from Schedule A). This is the process by which the United States employer must prove to the United States Department of Labor that there is no qualified, willing and able United States worker for the proposed job.

The PERM process comprises the following main steps:

1. Prevailing Wage Determination: the employer applies to the DOL to determine the minimum wage payable for the position. Time: 4-6 months
2. Recruitment: the employer must advertise the position widely as prescribed, including posting in various media and internal notices. Time: 30-60 days
3. Recruitment Report: collating and explaining why the United States applicants were not qualified
4. Filing Form ETA-9089 through the FLAG system: the employer files the formal electronic application with the DOL. Processing: 6-12 months or longer where audited
5. DOL approval: once approved, the PERM filing date becomes the Priority Date — the basis for determining the place in the visa queue

The total PERM time is usually 12-18 months, and may be longer where audited. Audit rates are higher for cases with unusual job requirements or where the employer has a history of layoffs in a similar field.

The overall United States skilled worker immigration process

After PERM (where required), the process continues with the following steps:

Step 1: filing Form I-140

The employer (or the individual in the case of EB-1A and EB-2 NIW) files Form I-140 (Immigrant Petition for Alien Worker) with USCIS together with documents evidencing the qualifications, experience and the employer’s ability to pay. Standard processing: 6-12 months. It is possible to usePremium Processingat a fee of USD 2,805 to reduce this to 15-45 working days.

Step 2: waiting for the Priority Date to become current

Once the I-140 is approved, the applicant must wait until their Priority Date becomes “current” (a visa quota is available) under the Visa Bulletin published monthly by the United States Department of State. For Vietnam:

• EB-1: usually current (no wait)
• EB-2: usually current
• EB-3 Skilled/Professional: usually current
• EB-3 Other Workers: may involve a wait because of the 10,000 a year quota

Step 3: filing Form I-485 (in the United States) or DS-260 (outside the United States)

Once the Priority Date is current, applicants have 2 options:

• Where in the United States: filing Form I-485 (Application to Register Permanent Residence) underAdjustment of Status (AOS)
• Where outside the United States: filingForm DS-260underConsular Processingat the United States consulate in Vietnam

Step 4: biometrics and interview

The applicant attends forbiometricsand an interview with a consular officer or USCIS officer. The questions focus on the genuineness of the application, the relationship with the employer and the true intention to immigrate.

Step 5: receiving the green card

Where the application is approved, the applicant receives aUnited States Permanent Resident Card (green card)valid for 10 years. After 5 years holding the green card, they may apply forUnited States naturalisationto become a citizen.

A comparison of the main skilled categories

A comparison table of the important factors across the 3 main skilled categories:

Criterion	EB-1	EB-2 NIW	the standard EB-2	EB-3
Qualification requirement	Depends on the subgroup	Master’s or exceptional ability	Master’s, or bachelor’s + 5 years’ experience	Bachelor’s or 2 years’ experience
Self-petition	EB-1A only	Yes	None	None
Employer required	EB-1B, EB-1C	None	Yes	Yes
PERM required	None	None	Yes	Yes (apart from Schedule A)
Assessment standard	Highest	Medium-high	Medium	Low
Total time (Vietnam)	1-2 years	1.5-2.5 years	2-3 years	2-4 years
Suited to	Exceptional talent, senior managers	STEM, healthcare and agriculture professionals	Professionals with advanced qualifications	Skilled workers, professionals, other workers

The cost of skilled worker immigration

The cost of the whole process from PERM to receiving the green card comprises several items. The estimated government fees for 1 applicant:

• PERM costs: mainly lawyers’ fees and advertising (paid by the employer), around USD 5,000 – 15,000
• Form I-140 filing fee: USD 715
• Premium Processing (optional): USD 2,805
• Form I-485 filing fee: USD 1,440 for the main applicant, USD 950 for each dependant
• Biometrics fee: included in the I-485
• DS-260 consular fee (where applicable): USD 345 per person
• Immigration medical examination: USD 200 – 500 per person
• Immigration lawyer’s fees: USD 8,000 – 25,000 depending on the complexity of the case

The total cost for a family of 4 is usually from USD 20,000 to 50,000, not counting the labour-relations costs (which employers usually pay for high-value staff).

The categories not regarded as “skilled”

To avoid confusion, it should be made clear that the following categories areis NOTwithin the United States skilled immigration group:

• EB-4: special immigrants (religious workers, former United States government employees, special immigrant juveniles) — see further atVisa EB-4
• EB-5: immigrant investors — an investment category, not a skilled one
• Family sponsorship (F-1 to F-4, IR): based on blood or marriage relationships, not on skills
• Lottery DV (Diversity Visa): the visa lottery, which does not apply to Vietnamese citizens
• Visa H-1B, O-1, L-1: a non-immigrant visa, which can be a bridge to an EB category but is not in itself a direct settlement route

Risks and points to consider

Before pursuing United States skilled worker immigration, Vietnamese applicants need to weigh the following risks.

Risk of dependence on the employer

Apart from EB-1A and EB-2 NIW, which allow self-petition, the other EB categories require a long-term commitment from a United States employer. Where the employer goes bankrupt, makes redundancies or withdraws the job offer before the I-485 is approved, the whole process must start again with a new employer. The Priority Date is preserved (where the I-140 has been approved for more than 180 days) but PERM must be redone.

Risk in waiting times

Although Vietnam does not face the serious backlog of India or China, the actual time from starting PERM to receiving the green card is still 2-4 years. The risk of a change of job, family circumstances or immigration policy during this time needs taking into account.

Immigration policy risk

United States immigration policy changes with the administration. The assessment standards for EB-1 and EB-2 NIW and the due diligence process may be tightened or relaxed depending on the political direction. Applicants should follow the Visa Bulletin and USCIS policy updates closely.

Risk of refusal

USCIS assessment standards are becoming ever stricter, particularly for EB-1A and EB-2 NIW. A case weak on evidence or unpersuasively argued may receive a Request for Evidence (RFE) or be refused. The RFE rate for EB-1A is currently around 40-50%.

Risk of misrepresentation and its consequences

Making false statements in an EB application can lead to a permanent bar on entering the United States under INA §212(a)(6)(C). Buying fake qualifications, fabricating experience or bribing officials is a federal crime. Vietnamese applicants need to be extremely careful in choosing an immigration advisory firm.

Conclusion

United States skilled worker immigration is a route worth considering for Vietnamese workers with qualifications, experience or exceptional achievements. With the 3 main categories EB-1, EB-2 (including NIW) and EB-3, every applicant can find a route suited to their personal profile. EB-1A and EB-2 NIW are the optimal choice where the standard is met, since they allow self-petition, do not depend on an employer and shorten the timeline considerably.

However, the complex multi-stage process (PERM, I-140, Visa Bulletin, I-485 or DS-260) and the considerable cost demand careful preparation. An overall timeline of 2-4 years for a Vietnamese case is the realistic figure to plan for. Particularly importantly, the evidence file for EB-1A and EB-2 NIW must be built professionally and strategically from the outset.

To identify the skilled category best suited to an individual profile and build a case strategy with a high chance of success, applicants should consult a specialist adviser with practical experience of USCIS and the United States Department of Labor. PLI provides United States skilled worker immigration advisory services, supporting Vietnamese applicants from preliminary case assessment and strategic planning through to coordinating with United States immigration lawyers throughout the processing of the case.