Most foreign nationals with current H-1B visa or L-1 visa status are eligible to apply for a green card, which gives them the right to live and work permanently in the United States. If your company employs foreign nationals, it's important to know the ins and outs of the employment-based green card process. This process can be very involved, so we built this guide to help make it simpler to understand the EB-2 and EB-3 options.
In brief, there are three "steps" to these employment-based (EB) green card processes -- Program Electronic Review Management (PERM), I-140 Petitions, and Adjustment of Status (AOS). Below, we detail the expectations and timelines associated with each step.
PERM
Processing Time: ~12 months
Approximate Fees: $5,000 legal fees, $0 government filing fees, advertising fees based on advertising market and medium (est. $1,000 - $5,000). Employer is legally obligated to pay for this stage.
This is the first step of the three steps in the green card process, and there are three distinct stages to this step. They include: identifying a position for sponsorship, recruiting for the designated position, and filing a Form ETA 9089. Below we break down each of these stages.
Stage 1: Identifying
The first stage of the green card process requires the company to identify a position for sponsorship. This can be similar to the one that the employee currently holds, but involves required specialized skills and experience that the employee will qualify for and few, if any, U.S. citizens would be eligible. The employee will then have to demonstrate that they possess the required skills prior to joining the company through experience letters from their former employers explicitly stating that they acquired the necessary knowledge and experience. This part of the process can be lengthy, as it takes time for the employees to obtain acceptable letters from their previous employers.
Once it's been determined that the employee is qualified for the green card position, a prevailing wage request must then be filed with the Department of Labor ("DOL"). The DOL will determine the appropriate salary for the position based on location, job duties and hiring requirements. This salary must be paid once the employee receives their green card (the 'AOS' stage). The current processing time for Prevailing Wage determinations is 3-5 months.
Stage 2: Recruiting
The company then tries to recruit US Citizens to fill the designated position. Recruitment can be 'batched' for multiple employees in the same position in order to save time and money. A recruitment campaign is started with required items (two Sunday print ads, State Workforce Order, and Internal Posting Notice) and three discretionary items (we recommend a radio ad, employee referral program, or local community ads, but additional options can be discussed).
Once recruitment ends, resumes are reviewed during a mandatory 30 day "cooling period" where candidates are evaluated and disqualified. Phone interviews and possibly in-person interviews can be necessary if applicants meet the minimum requirements for the position. The company will reach out to the applicants by email first, and we can assist with the evaluation process.
Stage 3: ETA 9089
Ideally, the company cannot find qualified candidates in the U.S., and the results of the recruitment campaign are submitted with the PERM application online (Form ETA 9089). The day that Form ETA 9089 is filed online will also be the employee's Priority Date in the AOS process, which we'll detail further a bit later on. The ETA 9089 takes approximately 4 to 6 months to be certified. If chosen for a PERM audit, this can take around 6 to 9 months.
I-140 Petition
Processing Time: ~4-6 months (or a decision within 15 calendar days with premium processing)
Approximate Fees: $3,000 legal fees, $700 government filing fee (plus an optional $1,225 for premium processing), $125 standard overnight shipping expenses. Employer or candidate can pay for this stage.
Once the ETA 9089 has been certified, the company files a petition that:
1) indicates that the employee is qualified for the position
2) that the position has been certified by the DOL, and
3) that the company has the resources to pay the wage.
Additionally, if the employee's Priority Date is current, they can file the I-140 and AOS petitions concurrently.
Adjustment of Status ("AOS")
Processing Time: Depends on Priority Date, country of birth, and employment category. (About 5-9 months for employees born in countries outside of China (mainland), India, Mexico, Philippines, Guatemala or El Salvador)
Approximate Fees: $2,500 legal fees for Form I-485 ($500 each for optional Form I-131 and Form I-765), $1,225 government filing fee, $125 standard overnight shipping expenses (all costs are per applicant; spouse/children are considered separate applicants). Employer or candidate can pay for this stage.
Once the I-140 is approved and the employee's Priority Date is current (see Visa Bulletin), they can file From I-485 Adjustment of Status (“AOS”) along with an optional Form I-131 Application for Travel Document and Form I-765 Application for Employment Authorization. The I-131 and I-765 are beneficial if the employee needs to travel or will need work authorization while their AOS is pending. This stage cannot be premium processed.
Filing the AOS depends upon the Preference Class, typically EB-2 or EB-3, Priority Date, and USCIS backlogs. Preference Class EB-2 (master's degree or bachelor's degree, plus 5 years of experience) generally allows the employee to secure the green card more quickly than Preference Class EB-3. Dependents (spouse and children) can also be filed at this stage. If the employee was born in one of the aforementioned countries, and their spouse was not (and filing concurrently) the employee can take advantage of cross-chargeability and use their spouse's country of birth to determine their chargeability.
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Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.legal.
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 Bridge-affiliated partner attorney or another qualified legal professional.
