- Raj Singh
HR Guide: Employment Based Green Card
Updated: Sep 14, 2022
The Green Card Process or the Application to register Permanent Residency is a slow and arduous process that the HR managers have to deal with to retain their foreign national talent. Aside from the complexity of the job advertisements and managing applicants that apply for the Green Card role, there are many other issues that employers are usually blind-sided by.
Who is this article for?
This article is for HR professionals who are either new to immigration, sponsoring 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 these 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., you have to worry about being allowed to come back into the country every time you have to travel outside the U.S. 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 an employer should start the Green Card process, you as an employer, 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 an already filed PERM and/or I-140.
Why is it important to get to an approved I-140?
Most work visas, particularly the H-1B, are issued for a maximum period of 6 years. To extend the validity beyond 6 years, the employer must get the employee to a stage in teh Green Card process where the employee has an approved I-140.
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 for Green Cards than there are available 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?
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 -
Prevailing Wage Determination
Job Advertisement / Recruitment
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 receive 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 Department of Labor (DOL).
Step 1(a) - Prevailing Wage Determination (PWD)
In this step, the employer provides the attorney with the job description for the prospective Green Card role. The attorney then uses the job description to file the PWD with the Department of Labor.
Note - At this stage, the employer will come up with minimum requirements, for the role. The skill and experience requirements should NOT include skills that have been learnt on the job with the employer (unless the employee now holds a materially different position now than what they were first hired for). Previous experience and skills learnt from past employments are okay 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 Bachelor's degree required
EB2 - Some experience or a Master's degree is required
EB1 - PhD is required or the candidate is at the top of their field (no PERM required)
| | Wait time to get PWD approval - 6-8 moths
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 Department of Labor. This step is required to make sure that the employer has considered any US citizen or permanent resident, who qualifies, for the prospective Green Card role.
Note - There may be some added expense for advertisement that the employer will need to should the cost for.
| | Wait time before the PERM is filed - 60 days
Step 1(c) - PERM Filing
Once it is determined that the employer is not find any qualified US citizens or permanent residents for the Green Card role, the PERM (Program for Electronic Review Management) can be filed with the Department of Labor. This petition is to prove to the Department of Labor that the employer used all means to find a suitable domestic candidate, but was not able to find one and is therefore requesting the Department of Labor to issue an approval/certification. The Department of Labor issues the certification and the priority date is the date when PERM application was filed. This priority date determines the place of the employee in the Green Card line. There is no Premium Processing available for this step.
Note - The PERM is valid for 6 months before an I-140 can be filed to capture the priority date of the PERM. Until the I-140 is filed, the priority date is not established.
Note - The priority date is PERM's date of filing (i.e. the date on which the Department of Labor accepted the PERM petition).
Note - This article provides more details on how long it is currently taking to get a PERM approval.
| | Wait time to get PERM approval - 6-8 moths
STEP 2 - I-140 | 8-12 months
This step involves the employer to file the I-140 petition with the USCIS to notify them about the PERM approval for the job and to put the foreign national employee in the line for the Green Card to be issued by the USCIS. While the priority date is issued by the DOL, USCIS is the entity 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 14 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. Premium Processing can be used for this step.
| | | Wait time to get I-140 approval - 8-12 moths (if not filed with PP)
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. while their I-485 application is pending with USCIS. These intermediate documents provide temporary work authorization and ability to travel outside and come back into the U.S.
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
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 accepting for each country.
Note - While your employee waits for the I-485 approval or Employment Authorization Document (EAD) and Advance Parole (AP), you will have to keep renewing their H-1B visa in the interim.
| | Wait time to get I-485 approval - 5-25 YEARS
| | Wait time to get I-485 approval - 1 YEAR
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.