By Elizabeth Rogers , J.D. ● Tulane University Law School
Updated by Samantha Topper Berns , Attorney ● University of Miami School of Law
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Bear in mind that the actual processing timeline for sponsoring a foreign worker can vary significantly from case to case. A number of delays can occur in the U.S. government's processing and in your accomplishing the various required tasks, depending upon the facts of the situation.
It typically takes at least a couple of years for a foreign worker to obtain a U.S. green card through an employer. The usual process involves three steps:
All of these steps are detailed below. Fortunately, as also discussed below, there are various temporary visas available that could allow the foreign worker to accept employment with your company during the years of waiting.
Most (but not all) foreign workers must go through the PERM labor certification process before they can apply for a green card. The PERM process itself is lengthy and involved. (See more on Employers: Sponsoring Immigrants for Work Visas or Green Cards.) From the employer's standpoint, the goal is to prove to the U.S. Department of Labor (DOL) that no willing and qualified U.S. workers are available to take the job.
First, the employer must define the duties and requirements of the foreign worker's prospective position. Although this might sound easy, it often takes a few weeks to complete, as these details play a critical role in the overall immigration strategy. The decisions made at this stage of the PERM process will have a major affect on the outcome of the later recruitment process. (Due to the complexity of the PERM process, it is highly recommended that employers consult a skilled immigration attorney.)
Second, after finalizing the job duties and requirements, the employer usually submits a prevailing wage request to the DOL. (It is also possible for the employer to use private surveys to determine the prevailing wage for the job.) The prevailing wage request is submitted online via DOL's Foreign Labor Application Gateway (FLAG) portal. It provides information on the job opportunity, such as the requirements, duties, and worksite location(s).
The DOL will then give the employer a prevailing wage determination (PWD) for the job position. As with all employer-sponsored visas, the employer must pay the foreign worker at least the prevailing wage. As of DOL's December 2023 reporting, the agency is taking almost an entire year to process PERM prevailing wage requests (and even longer for audits).
An employer may disagree with the wage the DOL provides and ask it for a redetermination. Or, the employer can edit the job duties/requirements and ask for a different wage. In either event, these extra steps will delay the petition even longer. In December 2023, the DOL was only just processing PWD reconsideration requests submitted in March 2023 (a nine-month delay).
After receiving an acceptable PWD, the employer can begin recruiting for the position. This consists of placing multiple advertisements and interviewing potential candidates. (For details, see Employer Recruitment Responsibilities Under PERM.)
As part of the recruitment, the employer must post a job order with the state workforce agency. This job order must run for 30 days. During this same time period, the employer runs the other ads, which typically have to include two Sunday newspaper ads and three other types of advertisements.
While the employer is not required to run the ads at the same time, doing so is usually a good idea. This is because there is a mandatory 30-day waiting period that starts after the last ad expires. The PERM application cannot be filed until this 30-day waiting period is over. Also, none of the ads may be older than 180 days at the time of filing the PERM application; in other words, each ad has a 180-day expiration date. Due to these requirements, it's usually easier to run the ads at the same time to ensure that none of them expire before the PERM labor certification application can be filed.
The next step is to submit the PERM application, the Permanent Employment Certification or Form ETA-9089, through the DOL's online FLAG portal. Employers should prepare for the DOL to be extremely unforgiving when it comes to mistakes and typos on ETA-9089. It almost never allows corrections or changes to be made. Mistakes will likely result in a denial, at which point the employer will have to start the whole process over again. The best way to avoid this is to consult an experienced attorney.
If the DOL approves the PERM, the employer can move on to step 2, the I-140 petition (described next). In the event that the DOL audits (asks for additional evidence) or denies a PERM, the process will likely be delayed by several months to several years. The PERM application must be complete and approved before the employer can move on to the I-140 petition.
As soon as the DOL approves the PERM application, the employer can file an I-140 petition with U.S. Citizenship and Immigration Services (USICS). This petition must include the original approved PERM application (which the employer and the foreign worker must sign), evidence of the employer's ability to pay the foreign worker's salary, and documents confirming that the foreign worker is qualified for the position, such as a copy of the worker's educational degrees.
(Note that a PERM is only valid for a certain period of time, and the I-140 must be filed within this validity period, or the PERM certification will expire and the employer must start over again).
Just like the DOL, USCIS posts time frames to let the public know approximately how long it usually takes USCIS to process an I-140 petition. As of early 2024, USCIS is reporting processing times ranging from 5 months to 22 months to make I-140 decisions, depending on the complexity of the petition type. Long waits like this are not uncommon (though the COVID-19 pandemic made it worse).
Notably, there is an expediting option available for I-140s. As noted above, an I-140 can be filed with premium processing for an extra fee meaning USCIS will make a decision on the I-140 within 15-45 business days, depending on the case type. USCIS recently increased its premium processing fees, starting February 26, 2024.
After USCIS approves the I-140 petition, the next step is to wait until a the foreign worker's priority date becomes "current" according to the Department of State's most recently issued Visa Bulletin. The Visa Bulletin essentially tracks the availability of green cards for each category of applicants, as green cards are granted in limited numbers based on priority date (application filing date). A foreign national must wait until the Bulletin indicates either that it has reached the foreign national's priority date, or that the date is "current" (accepting applicants through today's date. When the Visa Bulletin shows a date equal to or later than the foreign worker's priority date (or indicates "C" for "current") the worker can fill out and submit Form I-485 (green card application) to USCIS.
This is the only part of the process that requires workers to file an application on their own behalf; employers cannot file the I-485 for their workers. (Again, this assumes that the worker is already in the U.S. on a temporary visa, as is common in most cases. If not, when USCIS approves of the I-140, it automatically triggers the National Visa Center to send the file to the appropriate U.S. consulate for further processing.)
According to USCIS, the median processing time for all employment-based I-485 applications across all its service centers was 8.6 months in 2023, with a projected 8.2 months for 2024. Processing times can vary depending on the location. Specific locations can be checked on USCIS's website.
As mentioned above, USCIS approval of I-485s must wait until the applicant's priority date is current. Therefore if priority dates retrogress (move backward, as they sometimes do) after the I-485 is filed, USCIS will hold the application until the priority date becomes current again. Due to the common priority date backlog for nationals of India, Mexico, the Philippines, and China, these foreign workers often have to wait several years for USCIS to approve their petitions.
Along with the above time frames, it is important to consider the costs of employer sponsorship, which can easily run into the thousands of dollars. U.S. immigration law mandates that the employer pay ALL of the costs associated with the PERM process (including the costs of advertisements and any legal fees). Violating this law can cause serious consequences for the employer.
In most cases, a foreign worker does not have to wait for an actual green card before reporting for duty. Immigration law provides many temporary work visas that foreign workers may use during the wait, ideally to work for the employer during this entire process, such as the H-1B visa and O-1 visa. For further discussion, see Employers: Sponsoring Immigrants for Work Visas or Green Cards.
Because of the complexity of evaluating a worker's eligibility for a green card and handling details of the recruitment and application process, most companies find it beneficial to hire an attorney to help. Larger companies might even have immigration attorneys on staff. But if that doesn't describe your business, don't worry, it's still possible to find excellent help with this task.