Green Card Via Employment

For most green card via employment applicants, there are three steps to the process. The three steps are:

Some foreign workers are exempt from testing the labor market via a PERM application. Instead these applicants skip directly to the I-140 petition. These applicants include O-1 workers of extraordinary ability, outstanding researchers and scholars, most L-1A multinational executives and managers and some E-2 Executives and Managers. For more information, please read my I-140 article.

Step One Of The Green Card Process: PERM Labor Certification Application

PERM Procedures and Employer Responsibilities:

The first step of the green card process is to file the PERM labor certification application. The PERM is filed with the U.S. Department of Labor. The purpose is to see if a qualified and willing U.S. worker is interested in the applicant's position. An employer may sponsor an employee for a current or promoted position; or a prospective employee, even one who is out of the United States, that they would like to employ at a later date.

The PERM filing date is significant because it puts the applicant "in line" for a green card filing date and for H-1B holders, may give the opportunity to extend H1B status until that date.

Testing the Labor Market

Before filing the PERM application, the employer must test the labor market, to see if qualified US applicants exist for the position. The employer must advertise over a period of at least thirty days. Recruitment must include two Sunday ads in the newspaper of highest circulation for that city; an internal posting; and a 30 day ad on the State's online job bank. Employers are then allowed to choose three alternative forms of recruitment from a list of ten options: commonly used options include employee referral program; web based private classifieds; employer's website and campus recruitment.

Resume Review and Filing

Employers must review all resumes from U.S. workers that are submitted during the recruitment period and in the 30 day window after recruitment closes. Legitimate reasons to disqualify applicants include: he or she is not a U.S. worker; does not meet the minimum educational and experience requirements; cannot satisfactorily perform the job duties; or is not interested in the position. If after good faith resume review and a controlled vetting process, a qualified and willing US worker is not located, the PERM application is then filed with the Department of Labor.

Processing times vary and alter often throughout the year, taking from 3- 14 months after filing. Once the PERM application is approved, the employer moves on to the second step in the green card process: the I-140 petition.

Step Two Of The Green Card Process: The I-140 Petition

After the PERM labor certification is approved, the sponsoring employer files an I-140 immigrant petition with DHS. This application must be filed within 180 days of PERM certification. Among other things, the employer must show financial stability, an ability to properly pay the applicant and a desire to continue the applicant's employment. The employee submits documentation verifying that he or she meets the minimum job requirements as listed in the certified PERM application. In addition, the employer submits the original approved PERM application, as DHS has the final approval over this application. In some instances the employer and employee are able to file the I-140 petition and the adjustment of status application simultaneously.

Step Three Of The Green Card Process: The Adjustment Of Status Application

Eligibility Requirements for the Adjustment of Status Application (for the principal applicant and family members):

Generally, each applicant must show:

  • Maintenance of status while in the U.S. (i.e. never overstaying a visa or doing something to violate that visa)
  • That the sponsoring employer paid the correct wage as listed on the underlying non-immigrant visa
  • That he or she has not been employed without authorization including self employment or working for an unauthorized employer
  • Filed required state and federal taxes
  • Has not otherwise violated immigration or other laws of the United States

Family members are permitted to file for green card applications with the principal applicant. Qualified family members include the spouse and children under 21. Each applicant must meet the same qualification standards as the principal applicant.

Green Card Wait Times:

Wait times vary significantly for employment based green card applicants. That is because the Department of State uses an annual quota system. Wait times depend upon the employment based filing category, applicant's country of birth and other employment details.

Employment Authorization When Green Card is Pending:

When filing for a green card, the applicant may apply for work authorization based on the green card applications. If the underlying non-immigrant petition is still valid, the employee may continue employment based on this approval as well. Derivative Family Members may also apply.

International Travel When Green Card is Pending:

When filing for a green card, the applicant may apply for advance parole document, which allows re-entry to the U.S. after international travel. A green card applicant may not leave the U.S. without this document or the underlying green card application is abandoned! The exception to this rule is for H-1B and L-1 visa holders who still have unexpired visas.

Other Business Visas That Might Apply:

For more information about these business immigration visas, please read these articles: