Updated: Jan 20
Ever since Congress updated the cap (30 years ago), the demand for green cards has been steadily increasing, both for family and employment based categories. For the sake of this article, let’s focus on employment based green cards.
For a foreign national employee on H-1B, the path to a green card starts when the employer agrees to file the petition for him/her. This could potentially take 2 - 3 years to start, depending on the company policy. The starting point for every foreign national employee towards a green card is the same but the time it takes to get to the end of the process depends on the employee’s country of birth (not the country of citizenship). For example, if a Canadian citizen, born in Thailand, files for a Green Card, then he/she would be put in the line for Thailand and not Canada. Thus, the country of birth would dictate how long it would take someone to go through the process, or in other words how long the backlog will be for an employee.
Before we look at the backlog, let’s look at the process to get a green card for a little context.
What’s the process to get an employment based green card?
As we mentioned before, the employment based green card needs to be initiated by the employer. The foreign national individual cannot file for an employment based green card without the employer first filing the PERM.
PERM: The Permanent Labor Certification (PERM), involves the employer advertising the job to prove to the Department of Labor that no suitable US person could be found with reasonable recruiting efforts to fill the position. The employer needs to pay for this step, which involves legal and advertisement or publishing fees. The process takes 8 - 12 months to complete.
I-140: After the PERM approval, I-140 (Petition for Alien Worker) needs to be filed. This step can be done and paid for by the employee or the employer. This process can take anywhere from 1 to 10 years (or more) depending on the country of birth.
I-485: Once the date for I-140 becomes current (hint: backlog), the employee or the employer can file the I-485 (Application to Register Permanent Residence or Adjustment of Status). This step can take another 1 to 2 years before the employee gets his/her green card.
What is the green card backlog?
If the employee's category requires a labor certification from Department of Labor (DOL), the "Priority Date" is assigned when the labor certification application is accepted for processing by DOL. This date then dictates when a foreign national employee can file for the adjustment of status (I-485). The I-485 can only be filed if the Green Card cap hasn’t been reached for the year. If the cap is met for the year, then the foreign national employee will enter the backlog and would only be eligible to file once his/her priority date becomes current.
What variables determine an employee’s backlog?
The queue that a foreign national employee sits in for the adjustment of status and how long the wait time is, depends primarily on the employee’s country of birth and which category the green card was filed in.
Green Card Category - Each category has its own annual cap --
EB-1: This category includes priority workers, such as athletes, scientists, business owners, artists or professors acclaimed internationally, as well as multinational executives. The annual cap for EB-1 is 40,040.
EB-2: This category includes professionals, such as people who were offered employment in jobs that require an advanced or higher degree. The annual cap for EB-2 is 40,040 as well.
EB-3: This category is for skilled workers, who at least have two years of experience, as well as employees with jobs that require at least a bachelor’s degree. The cap for this category is 35,040, plus there are 5,000 visas for EB-3O (jobs that don’t require a bachelor’s degree).
EB-4: This category has 9,940 visas for special foreign national employees, which may include broadcasters, religious workers, military, U.S. government employees and abandoned juveniles.
EB-5: The fifth category has a 9,940 cap and is for foreign investors with investments made in the U.S. between $500K and $1.8M.
Country of birth - In a given year, no more than 7% of green cards can be issued to a single country. Therefore, if a country has over representation in the pool then the queue for that country’s nationals would move far more slowly than other countries.
Case in point are countries like China and India, who have the majority of representation in the green card application pool and thus long wait times. Individuals born in India especially have to face excruciatingly long wait times because they represent 75% of the total applicant pool for U.S. green cards.
Family Members - Since the family members (spouse and minor children) of the applicants would also get green cards, the cap is also affected by them. The family members of workers make up most of the employment based visas each year.
How do you determine what category would the employee fit in?
Consult with your company's legal immigration counsel to understand what category best suits your employee based on his/her work and academic background and the job that he/she is working in.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.