Steps in the Employment-Based Green Card Process

The process of obtaining an employment-based green card typically involves three main steps. The first step is filing the PERM Labor Certification with the Department of Labor (DOL). Through this certification, the employer confirms that they have tested the U.S. labor market through good faith recruitment efforts but were unable to find any “able, willing, qualified, and available” U.S. workers for the permanent position being offered. Once the PERM Labor Certification is approved, the next step is filing the I-140 Immigrant Petition with U.S. Citizenship and Immigration Services (USCIS). This petition establishes the beneficiary’s employment-based category. The final step is submitting the I-485 Adjustment of Status application with USCIS, which is the actual green card application. However, this last step can only be initiated if the beneficiary’s priority date is current, meaning a green card is available to them immediately.

Understanding the Priority Date and Visa Bulletin

The filing date of the PERM Labor Certification sets the beneficiary’s priority date, which determines their place in line for a green card. The Visa Bulletin helps illustrate this waiting period, especially for individuals born in countries with high demand for employment-based green cards, such as India. For example, someone born in India with a priority date of January 01, 2013, in the EB-2 category can now apply for their green card, reflecting the long wait.

Importance for H-1B Visa Holders

It is crucial for H-1B visa holders to start the employment-based green card process as early as possible, given that H-1B status is limited to six years. Fortunately, under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), H-1B visa holders can extend their status beyond six years under certain circumstances. If the PERM Labor Certification is filed at least 365 days before the H-1B visa holder reaches their six-year limit, they can secure a one-year extension. Additionally, if they have an approved I-140 petition but their priority date isn’t current, they are eligible for three-year extensions until their priority date becomes current. This provision allows H-1B holders facing lengthy waits to remain in the U.S. beyond the six-year limit.

Delays in DOL Processing Times

Starting the green card process early is even more important due to increasing DOL processing times in recent years. It now takes almost 2 years to receive PERM Labor Certification approval. Before filing a PERM Labor Certification, the employer must first secure a Prevailing Wage Determination (PWD) and then test the U.S. labor market through various recruitment methods. As of August 01, 2024, the DOL’s National Prevailing Wage Center was issuing PWDs for applications filed in January 2024, indicating a wait time of about 8 months. However, some employers have experienced shorter waits, around five to six months.

The DOL also reported that as of August 01, 2024, it was processing PERM Labor Certifications filed in July 2023, with an average wait time of about 13 months. Additionally, for cases under audit, the DOL was processing PERM Labor Certifications filed in December 2022 or earlier, with an average processing time of 565 days for audited cases, adding many months to the total processing time for affected PERM applications.

Challenges for H-1B Holders Facing Processing Delays

As PERM processing times increase, more H-1B visa holders are unable to secure both a PERM Labor Certification and an approved I-140 petition before reaching their six-year limit. In these situations, individuals must explore alternative options, such as changing their status to another nonimmigrant visa category or departing the U.S. while awaiting the approval of their PERM and I-140 petitions.

Conclusion

Starting the employment-based green card process early is highly recommended, especially for those born in countries with significant green card backlogs. For H-1B visa holders, obtaining an approved PERM Labor Certification and I-140 petition before hitting the six-year limit is essential, as it allows for H-1B extensions beyond six years. Given the complexities of the U.S. immigration system, it’s always wise to consult a qualified immigration attorney to develop the best strategy for each individual case.

For over 25 years, Reddy & Neumann, P.C. has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. 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’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.