Petitions under EB-1, EB-2, and EB-3 categories must be filed on Form I-140, Immigrant Petition for Alien Worker. In general, the Form I-140 petition must be supported by an employment offer from a U.S. employer and filed by the prospective U.S. employer. Applicants seeking classification under EB-1 Extraordinary Ability or EB-2 Exceptional Ability with national interest waiver application need not provide an employment offer and may do self-petition.
Petitions under EB-4 category generally must be made on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. For petitions under EB-5 category, the immigrant investor must file the petition on Form I-526, Immigrant Petition by Alien Entrepreneur.
Petitions requiring an offer of employment must show that the U.S. employer has the ability to pay the prevailing wage for the proffered job as determined by the National Prevailing Wage Center. The U.S. employer must demonstrate this ability at the time the priority date is set (i.e., date of filing of labor certification or, if labor certification is not required, date of filing of the petition) and continuing until the beneficiary obtains lawful permanent residence. To demonstrate this ability, the employer must show that it has a net income or net current assets at least equal to the proffered wage, as evidenced by copies of annual reports, federal tax returns or audited financial statements. If the petitioning employer employs at least 100 workers, a statement of ability to pay from a financial officer of the employer will suffice to meet this requirement.