Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses all the steps and the processing times involved in sponsoring an immigrant worker for a green card in 2021.
There are many different steps involved in the employment-based sponsorship process, but what most people are confused about is the timeline. How long will it take you to get a green from the moment your employer starts to file for you to the moment you have your green card in hand?
To know the answer to this question and much more information on green card processing for a foreign worker, just keep on watching.
The process of immigrating someone through employment is a complex procedure that causes great confusion for many applicants and their petitioners. Most often applicants and their employers do not have a clear idea of how much time the employment process takes from beginning to end. In this post, we will go through the expected timeline for employment based green card sponsorship, as well as the steps involved to successfully sponsor a foreign worker for a green card.
The general processing times can vary greatly from case to case depending on the complexity of each individual case, but in general there is a common time frame of how long it generally takes for a green card to be approved following sponsorship by a U.S. employer.
The usual green card process involves 3 general steps.
STEP 1: Obtaining PERM/Labor Certification
The first step to initiate the employment-based sponsorship of a foreign worker is the successful completion of a labor certification application also known as PERM (Program Electronic Review Management). Obtaining approval of a labor certification application can take anywhere from 6 months to more than 1 year, depending on how your case was filed and where it was filed.
STEP 2: Filing the I-140 petition
The second step involved in the employment based green card process is the approval of the I-140 Immigrant Petition, which is the basis of the application with the U.S. Citizenship and Immigration Services (USCIS). It is currently taking over 8 months for I-140 petitions to be approved; however, employers have the option of filing with premium processing service for an additional filing fee of $2,500 which guarantees a decision within 15 calendar days of the application being received by USCIS.
STEP 3: Filing the I-485 green card application or immigrant visa
The third and final step involves adjustment of status to permanent residence for those applicants who are residing in the United States in valid visa status, and whose priority date is current on the Visa Bulletin. For these applicants, applying for adjustment of status is the final step of the green card process. Applicants who are residing abroad must apply for an immigrant visa at a U.S. Embassy or Consulate overseas once their priority date becomes current on the Visa Bulletin.
Depending on your appropriate green card category such as EB-2 or EB-3, there is an option for the U.S. Employer (petitioner) to file Form I-140 and Form I-485 concurrently (at the same time). Those who file Form I-140 and Form I-485 concurrently are eligible to apply for work authorization by filing Form I-765, as well as travel authorization by filing Form I-131 at no additional cost.
How long does the PERM labor certification process take?
The purpose of the PERM/labor certification process is to test the job market. That process requires the U.S. Employer (petitioner) to post multiple job advertisements for the particular position to demonstrate that there are no qualified U.S. workers available for the position being offered. Before these advertisements can run, the U.S. Employer (petitioner) must file what is called a labor certification application with the U.S. Department of Labor to obtain an approved “prevailing wage determination.” The labor certification is a form that can be filed online and asks the U.S. Employer necessary information about the position being offered including the prevailing wage that the employer must pay the worker in the future once the green card application is approved.
Obtaining the certified labor certification application including the prevailing wage determination is an extremely important step to settle before the U.S. Employer (petitioner) begins advertising the position in the job market. That is because, if the employer’s advertisements include an inappropriate wage in the job listings, the entire recruitment process can be void and cancelled. It is also an important step to make sure that the advertisement includes the proper job description for the position, and because it will allow the employer to include the final and approved prevailing wage determination outlined in the labor certification application in the job listing during the advertisement process.
The PERM/labor certification process can take anywhere from 4-6 months, while the advertising process can take another 2 months. The processing of labor certification applications is currently delayed, therefore it is important to plan ahead to ensure that your application moves forward in a timely manner, and so that you know what to expect.
Only once the U.S. employer has received the certified labor certification from the Department of Labor, including the prevailing wage determination, should they begin advertising for the position with the appropriate details including the prevailing wage that will be paid for the position.
With the PERM/labor certification filing and advertising process alone, an applicant is facing a waiting period of at least 6 months. These steps are just to prepare for the filing of the application itself and does not account for the actual processing time to adjudicate the I-140 application.
There is also a mandatory 30-day waiting period required from the time the last advertisement runs before the U.S. Employer can file the PERM application. This adds another 30 days to the process – for a total of 7 months before even filing the application with immigration.
Once these steps have been completed, the PERM application can be filed online. This PERM application could be pending anywhere from 6 months or more. If all goes well and there is no audit, the application will be certified, and the applicant will be able to move to step 2 – filing the case with the U.S. Citizenship and Immigration Services (USCIS).
How long does the I-140 Immigrant Petition take to process?
Before your employer can file the I-140 Immigrant Petition, they must first obtain an approved PERM labor certification from the U.S. Department of Labor and send the original application with the case filing.
When the U.S. employer prepares and files the I-140 application, USCIS is interested in knowing whether the employee is currently working for the U.S. employer and if so whether the employee is being paid the prevailing wage. If the employee is not being paid, the employer must prove that they have the ability to pay the prevailing wage in the future, by providing their corporate tax return, or any other financial document to show that they have the financial ability to pay the employee the prevailing wage in the future.
Once the U.S. employer has all of the documents in order, the I-140 application is filed with USCIS. It is currently taking over 1 year for I-140 petitions to be approved by USCIS with regular processing, however the U.S. Employer has the option of paying the additional fee of $2,500 for premium processing service, to ensure that the application is approved within 15 calendar days.
Filing the I-140 and I-485 Concurrently
As I mentioned previously, certain applicants filing under the EB-2 or EB-3 category who are lawfully residing inside the United States, may file Form I-140 and I-485 green card application concurrently (at the same time) provided their priority date is current on the Visa Bulletin.
Applicant’s whose category is not current (meaning that visas are not available at the moment) will need to first file Form I-140 and wait for it to be approved. Once the priority date becomes current, then they can proceed with their immigrant visa application at a Consulate overseas (if you are residing abroad) or filing Form I-485 for adjustment of status with USCIS (for those lawfully residing in the U.S.).
Currently, Form I-485 applications (for a green card) filed with USCIS are taking over 25 months to be processed. Applicants who file Form I-485 with USCIS also have the option of filing for temporary employment authorization while their applications are in process by filing Form I-765, as well as a temporary travel permit by filing Form I-131. The employment authorization and travel permit applications can be filed at the same time as the Form I-485 (together in one filing) for those with a current priority date.
We hope that during the Biden administration these timeframes will decrease but at the moment these are the general processing times for employment based green card sponsorship.
To avoid any missteps in the filing process and help you navigate the complicated road through employment-based sponsorship, we recommend for you to speak with an experienced immigration attorney who will guide you throughout the entire process from A to Z.
Want to know more? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
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