For foreign nationals working in the United States on temporary visas, particularly H-1B holders, initiating the employment-based green card process as soon as possible is critical. Lengthy processing times, complex eligibility requirements, and recent policy changes mean that early planning can make the difference between maintaining lawful status and facing difficult choices about remaining in the country.

The Three-Step Path to a Green Card

Obtaining an employment-based green card involves three distinct phases. The process begins with the PERM Labor Certification, which the employer files with the Department of Labor (DOL). Through this certification, the employer demonstrates that despite conducting good faith recruitment efforts and testing the U.S. labor market, no able, willing, qualified, and available U.S. workers could be found for the permanent position being offered.

After PERM approval, the employer submits an I-140 Immigrant Petition to U.S. Citizenship and Immigration Services (USCIS). This petition establishes which employment-based category the beneficiary qualifies for. The third and final phase is the I-485 Adjustment of Status application filed with USCIS. This is the actual green card application itself. Beneficiaries can only file this final application when their priority date is current, meaning a green card is immediately available to them.

Understanding Priority Dates and the Visa Bulletin

When the PERM Labor Certification is filed, the beneficiary’s priority date is established and this effectively determines their place in the queue for a green card. The monthly Visa Bulletin tracks these priority dates and reveals the often substantial waiting periods, particularly for individuals born in countries with high demand for employment-based green cards.

India provides a striking example of these delays. As of the most recent Visa Bulletin (December 2025), someone born in India with an EB-2 priority date of December 1, 2013, can now file for their green card. This represents a wait of over a decade simply to reach the final application stage, illustrating why early action is so vital.

Why H-1B Visa Holders Must Act Quickly

The urgency of starting early is especially acute for H-1B visa holders, whose status is ordinarily limited to six years. Fortunately, the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) provides extensions beyond this six-year limit under specific conditions.

If the PERM Labor Certification is filed at least 365 days before an H-1B holder reaches their six-year limit, the individual becomes eligible for a one-year extension. More significantly, once the I-140 petition is approved but the priority date remains unavailable, the beneficiary qualifies for three-year extensions that can continue indefinitely until their priority date becomes current. This mechanism allows H-1B holders facing extended waits to remain in the United States well beyond the standard six-year period.

Significant Delays in DOL Processing

The importance of early filing has intensified dramatically due to mounting DOL processing delays in recent years. Currently, it takes approximately 16 to 17 months from filing the application with DOL to receive PERM Labor Certification approval. The timeline becomes even longer when considering the prerequisite steps.

Before filing a PERM Labor Certification, employers must first obtain a Prevailing Wage Determination (PWD) and then conduct extensive recruitment to test the U.S. labor market. As of December 1, 2025, the DOL’s National Prevailing Wage Center was processing PWD applications filed in July 2025, indicating wait times of roughly five months. Some employers have experienced somewhat shorter periods of four to five months, but significant delays remain the norm.

The PERM processing itself presents an even greater bottleneck. As of December 1, 2025, the DOL was processing PERM Labor Certifications filed in July 2024, representing an average wait time of approximately 17 months. Cases selected for audit face dramatically longer delays as these audits can add many additional months to an already lengthy process.

The Growing Challenge for H-1B Holders: The 100K Fee

As PERM processing times continue to expand, an increasing number of H-1B visa holders find themselves unable to secure both an approved PERM Labor Certification and an approved I-140 petition before exhausting their six-year limit. When this occurs, individuals face limited and often difficult options.

The September 2025 Presidential Proclamation imposing a $100,000 fee on most consular-processed H-1B petitions has fundamentally altered the options for foreign nationals approaching their six-year H-1B limit. The traditional strategy of relocating abroad to work remotely while waiting for AC21 eligibility is now prohibitively expensive, as re-entering the U.S. would require consular processing and trigger the fee.

As a result, H-1B workers approaching their six-year limit must consider two primary alternatives:

1. Maximize recapture time through short international trips while maintaining H-1B status in the U.S. This allows any full days spent abroad to be recaptured and used to extend H-1B validity until reaching either the 365th day of a pending PERM or an approved I-140, at which point an extension of status can be filed domestically without incurring the fee.
2. Change to another nonimmigrant status within the U.S. (such as H-4, F-1, or B-2) until AC21 eligibility is reached when travel is not possible.

Both options require careful timing, strategic planning, and employer support. While domestic status changes avoid the fee and allow beneficiaries to maintain lawful presence, most alternative statuses, except for H-4 EAD holders, do not provide employment authorization. Beneficiaries may need to stop working temporarily and have employers hold their positions open. The key takeaway is that meticulous advance planning and strategic timing have become essential, as the flexible options that previously existed now carry significant financial or practical consequences under the new proclamation.

Taking Action Now

For foreign nationals seeking permanent residency through employment, particularly those born in countries with substantial green card backlogs, beginning the process immediately cannot be overstated. For H-1B visa holders specifically, securing both an approved PERM Labor Certification and an approved I-140 petition before reaching the six-year limit is essential to qualifying for extensions that allow continued presence in the United States.

Given the complexities of U.S. immigration law, the lengthy processing times, and the high stakes involved, consulting with a qualified immigration attorney is strongly recommended. An experienced attorney can assess individual circumstances, develop an optimal strategy, and help navigate the process efficiently to maximize the chances of success.

For over 25 years, Reddy Neumann Brown PC has focused exclusively on U.S. employment-based immigration. Our attorneys guide employers through every stage of the PERM process, ensuring compliance and best practices. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

 

 

Jessica Palarca is an attorney in Reddy Neumann Brown’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.