HR Guide: Employment Based Green Card

Updated: Apr 27


The Green Card Process or the Application to Permanent Residency is a slow and arduous process that the HR managers have to deal with to retain their foreign national talent. Besides the complexity of the job advertisement and managing applicants that apply for the job, there are other issues that the employers are usually blindsighted by.


Who is this article for?

This article is for HR professionals who are either new to immigration, doing an employee's green card for the first time, or want to share the details of the process with their employees to set expectations.



Why are my employee so concerned about the Green Card process?

The lives of your foreign national employees are dependent on the outcomes of the immigration petitions and processes. While the work visas give them some stability, they are often concerned about their place in the green card line or the time it would take to get a green card.


Imagine this - if you are a foreign national in the U.S., every time you have to travel outside the U.S., you have to worry about being allowed to come back into the country. This is either because you have to apply for a visa at the embassy or have to answer a lot of questions at the U.S. port of entry. All this not only adds to the complexity of being an immigrant in the U.S. but also makes your life feel unstable. The constant fear of something going wrong is always in the back of your head.



What can I do to make sure that my employees are not worried about the process?

The best thing that you can do as a manager is to understand where they are coming from. It is also a good idea to set up an immigration policy that would let your employees know when to expect the process to start. Further, having a fact sheet that details the timeline and the steps involved would be very helpful.



When should I start the green card process for our employees?

While USCIS or the Department of Labor do not have rules on when you can start the green card process, as an employer, you should consider starting after at least 12 months of satisfactory employment. We are seeing employers in more competitive markets moving towards starting the process earlier to retain their foreign national employees - especially experienced employees who transferred over with a filed PERM and I-140.



Why is it important to get to an approved I-140?

Most work visas are issued for a maximum period of 6 years. To extend the validity beyond 6 years, the employer must get the employee to an approved I-140 status.



Why is the wait time for Indian and Chinese nationals so long?

The number of immigrant visas is capped by country of birth by an act of Congress. Employees from countries that have over-representation (for example China and India) have to wait longer to get the green cards.


For example, let's assume that the USCIS gives out 50K green cards per year to each country like Nepal and India. Now, if there are 30K Nepali citizens in the US eligible for these green cards, then all of them will get the green card that year. But if there are 80K Indian citizens eligible for the 50K green cards then the ones who are at the top of the queue would be assigned green cards and the rest 30K will have to wait for the next year. Thus, the wait times for Indian and Chinese nationals is significantly longer because there are more people eligible than there are green cards that can be given out.


Note - even if your employee has citizenship that is different than their country of birth, this does not allow them to avoid longer wait times.For example, if an employee was born in China but gained Canadian citizenship as a child, that employee would still wait in the same queue as Chinese-born individuals with Chinese citizenship.



What is the timeline for the Green Card process?

Green Card Process and Timelines

  • 1.5 -2 years to get to I-140 approval

  • 5-25 years for Indian and Chinese nationals to get a green card

  • 1-2 years for all other foreign nationals to get a green card

Total Time 3 years to 27 years



What are the steps of the Green Card Process?

The Green Card process can be broken down into three major milestones -

  1. PERM

  2. Prevailing Wage Determination

  3. Job Advertisement / Recruitment

  4. PERM filing

  5. I-140

  6. I-485

Let's look at each of these steps in more detail.



STEP 1 - PERM (Labor Certification) | 12-14 months

This is by far the longest and the most complex milestone of the whole process. This step requires you to work with the Department of Labor and satisfy the requirements laid out to get a prevailing wage determination, advertise the job being offered to the foreign national employee to ensure there are no qualified domestic workers, and then file the PERM petition with the DOL.


Step 1(a) - Prevailing Wage Determination (PWD)

In this step, the employer provides the attorney with the job description that the foreign national employee was hired for when they first started at the company. The attorney then uses the job description to file the PWD with the Department of Labor.


Note - the job description used for this step needs to match the role that the employee was first hired for. The skill and experience requirements should NOT include what has been learnt on the job with the employer. Previous experience and skills learnt are ok to include.


The job description would determine if the job can be categorized as EB1, EB2 or EB3. The easiest way to think about these categories is this way -

  • EB3 - No experience or a master's degree required

  • EB2 - Some experience or a master's degree is required

  • EB1 - Considerable experience or PhD is required

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| | Wait time to get PWD approval - 6-8 moths

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Step 1(b) - Job Advertisement / Recruitment

Once the PWD is approved, the employer needs to run advertisement for the job for 30 calendar days using 7 out of the 9 different channels that are determined by the DOL. This step is required to make sure that the employer has considered any US citizen or permanent resident, who qualifies, for this job.


Note - There may be some added expense for advertisement that the employer needs to shoulder the cost for.


| | Wait time before the PERM is filed - 30-60 days

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Step 1(c) - PERM Filing

Once it is determined that the employer could not find any qualified US citizens or permanent residents for this role, the PERM (Program for Electronic Review Management) can be filed with the DOL. This petition is to prove to the DOL that the employer used all means to find a suitable domestic candidate but was not able to find one and hence requesting the DOL to issue an approval. The DOL would issue a priority date that determines the place of the employee in the green card line. There is no premium processing available for this step.


Note - This article provides more details on how long it is currently taking to get a PERM approval.


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| | Wait time to get PERM approval - 6-8 moths

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STEP 2 - I-140 | 8-12 months

This step involves the employer (attorney) to file the I-140 petition with the USCIS to tell them about the PERM approval for the job and to put the foreign national employee in the line for the green card that is issued by the USCIS. While the priority date is issued by the DOL, the USCIS is who is responsible for issuing the green card.


This process can take anywhere from 8 - 12 months but premium processing (PP) can be used to get a decision within 15 calendar days. Once the I-140 is approved, all foreign national employee (except Chinese and Indian nationals) become immediately eligible for filing the I-485.


Note - The employer or the employee can pay for this step.


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| | | Wait time to get I-140 approval - 8-12 moths (if not filed with PP)

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STEP 3 | Non Indian and Chinese Nationals - I-485 | 1 yr

As mentioned above, the wait time for non Indian and Chinese nationals is 1 year to get the I-1485 approval and for USCIS to issue a green card. In the meantime, the foreign national employees can get an Employment Authorization Document (EAD) and an Advance Parole (AP), to keep working in the U.S. with renewing the work visa and the latter to travel outside the country.


Note - The employer or employee can pay for this step. There is no Premium Processing available.


| | Wait time to get I-485 approval - 1 YEAR

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FINAL - Green Card issued



STEP 3 | Indian and Chinese Nationals - I-485 | 5-25 yrs

Indian and Chinese nationals have to wait for their priority date to become current. This means that if they were given a priority date of Jan 01, 2020 then they have to wait until USCIS announces that they are accepting applications for that priority date. USCIS publishes visa bulletin every month announcing which priority dates they are working on for each country.


Note - While your employee waits for the I-485 approval or EAD and AP. You will have to keep renewing their H-1B visa.


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| | Wait time to get I-485 approval - 5-25 YEARS

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FILE I-485


| | Wait time to get I-485 approval - 1 YEAR

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FINAL - Green Card issued








 

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.





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