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This reference page outlines key aspects of the U.S. employment-based green card process, drawing from BAL’s guidance and legal best practices.
An employment-based green card allows a foreign national to become a lawful permanent resident of the United States through sponsorship by a U.S. employer. It provides the individual with the right to live and work permanently in the U.S. and eventually apply for citizenship if desired. This pathway is commonly used by professionals, skilled workers and executives whose expertise is needed by U.S. companies.
The employer plays a central role in the employment-based green card process. They initiate and fund the Program Electronic Review Management (PERM), file the I-140 petition and provide supporting documentation throughout. Employers must also ensure compliance with U.S. Department of Labor (DOL) regulations and maintain records of recruitment efforts.
While the employee may handle the I-485 application, the employer’s continued support is crucial, especially if the employee has not yet reached the stage where job portability is allowed. Employers should also be aware of their obligations regarding prevailing wage determinations (PWD) and attestations made during the PERM process.
The employment-based green card process typically involves three major steps: PERM labor certification, the I-140 immigrant petition (Immigrant Petition for Alien Workers) and the I-485 adjustment of status (Application to Register Permanent Residence or Adjust Status) or consular processing. Each step has distinct requirements and timelines.
PERM labor certification is a document issued by the DOL that is required for many immigrant visa preference categories. The system that the DOL uses to process employers’ applications for labor certifications is called Program Electronic Review Management, also known as “PERM.”
As part of the PERM labor certification process, the employer is required to test the labor market and demonstrate that there are no U.S. workers in the geographic area of employment who are able, willing, qualified and available to perform the job in question, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An employer sponsoring a foreign national for EB-2/EB-3 visa preference categories (see FAQ “What are the employer-sponsored/employment-based green card categories?” below) must obtain an approved PERM labor certification from the DOL before a Form I-140 can be filed with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national.
To qualify for a labor certification, the employer must demonstrate:
The timeline for obtaining an approved PERM labor certification depends on a number of factors, including:
An approved PERM labor certification allows the employer to file a Form I-140 with USCIS on behalf of the foreign national and classify the foreign national under the appropriate employment-based category. The Form I-140 petition must be filed with USCIS within 180 days of the PERM labor certification approval.
After the I-140 petition is approved and an immigrant visa number is immediately available, there are two ways to apply for lawful permanent resident status (“green card”): file Form I-485 (if the applicant is in the U.S.) or apply through consular processing abroad. For example, an H-1B worker (a foreign national who holds a temporary, nonimmigrant visa to work in a “specialty occupation” in the U.S.) residing in the U.S. may pursue adjustment of status (“AOS”) to a lawful permanent resident after being sponsored for an immigrant visa by his or her employer (under one of the employment-based green card categories defined below). The H-1B worker would file an application requesting that USCIS adjust his or her status to that of a lawful permanent resident.
An application for adjustment of status is submitted to USCIS on Form I-485. In general, foreign nationals may not apply for adjustment of status until a visa number is available for the specific immigrant visa category. The U.S. Department of State’s (DOS) monthly Visa Bulletin determines when foreign nationals are eligible to file a Form I-485 application with USCIS based on their priority date.
If the priority date is not current, the applicant must wait until it becomes current to file the I-485 AOS. The DOS publishes the Visa Bulletin monthly, which shows the cutoff dates for each category and country.
During this waiting period, the applicant may remain in the U.S. on a valid nonimmigrant visa and continue working. However, they cannot file Form I-485 or receive a green card until their priority date is current. This delay can be significant for applicants from oversubscribed countries, and it’s important to monitor the Visa Bulletin closely.
After filing the Form I-485 application, applicants must attend a biometrics appointment at a USCIS Application Support Center to provide fingerprints, a photograph and signature. USCIS will review the Form I-485 application and notify the petitioner/applicant if additional documentation and/or an interview is required. After the additional documentation has been submitted and/or the interview has occurred, USCIS will determine whether to grant or deny the application. If USCIS grants the application, it will mail an approval notice to the foreign national and adjust the status of the individual to a lawful permanent resident. USCIS will mail the green card at a later date.
There are three preference categories for employer-sponsored/employment-based green cards, each with specific eligibility criteria. The EB-1 First Preference category is for priority workers, including multinational executives, outstanding researchers and individuals with extraordinary ability and DOES NOT require a PERM labor certification application.
The EB-2 Second Preference category eligibility criteria include foreign nationals who possess at least an advanced degree (a master’s degree or higher) or exceptional ability in the sciences, arts or business. This category typically requires a job offer from an employer and a PERM labor certification from the DOL, but this requirement can be waived for foreign nationals who qualify for a national interest waiver (a highly specialized green card category for foreign nationals who can show that their work in their field is of “national interest” to the U.S.).
The EB-3 Third Preference category eligibility criteria include foreign nationals who can qualify under three circumstances: (1) they will be employed in a job that requires at least two years of training or work experience and is not of a temporary or seasonal nature; (2) the job/position must be of a nature that requires at least a U.S. bachelor’s degree or foreign equivalent, and the foreign national must belong to a “profession”; or (3) they will be employed in a job that involves unskilled labor requiring less than two years of training or work experience and is not of a temporary or seasonal nature.
Selecting whether to pursue a green card through the EB-2 or EB-3 categories occurs when the employer/petitioner files the Form I-140 with USCIS. For cases that are eligible for both EB-2 and EB-3 categories, selecting the appropriate preference category can save years in the process and significant associated expense in future nonimmigrant status extensions.
In some circumstances, a foreign national may be the beneficiary of a Form I-140 petition that was based on a PERM labor certification for the EB-3 category but will have subsequently changed roles to a position that would qualify under the EB-2 category. In these situations, the employer should identify whether they must first undertake a new PERM labor certification recruitment process based on the new role’s requirements and the foreign national’s qualifications. This would allow the employer to file a subsequent Form I-140 petition under the EB-2 category, which may result in the foreign national receiving a green card sooner.
Timelines vary widely depending on the green card category, the applicant’s country of origin and government processing times. For example, EB-1 cases may be processed more quickly than EB-3 cases, and applicants from countries with high demand (such as India or China) may face longer wait times due to annual per-country caps.
The PERM process alone can take six to 12 months, followed by several months for I-140 adjudication. If the priority date is current, the I-485 can be filed immediately; otherwise, applicants must wait until their date becomes current. Overall, the process can take anywhere from one to several years.
Changing jobs during the green card process can be risky and may affect eligibility. Job portability is allowed if the I-485 has been pending for at least 180 days and the new job is in the same or similar occupational classification. Before reaching this milestone, changing employers may require restarting the process from the beginning, including a new PERM and I-140.
No. Employers cannot expedite the PERM or PWD processes through premium or fast-track options. The DOL does not offer premium processing for PERM labor certification or PWD requests.
Employers can mitigate PERM processing delays by adopting proactive strategies focused on planning, contingency measures and clear communication. To allow time for wage determination, recruitment filing and responding to audits or appeals if needed, employers should start the PERM process at least 24 months prior to a visa’s expiration. Workforce planning ensures that key dates are tracked early, allowing sufficient time for each step.
Contingency strategies, like preparing alternative visa options or building buffer periods into project timelines, can help mitigate the impact of unexpected delays such as audits. Regular communication with legal counsel ensures that applications are complete, accurate and compliant with DOL standards, reducing the likelihood of rejections or prolonged reviews. Altogether, these practices can help employers navigate the PERM timeline more efficiently and avoid common pitfalls.
The Trump Gold Card is a proposed expedited path to permanent residency. Learn more about the Trump Gold Card or visit our permanent residency page to learn more.
According to U.S. Citizenship and Immigration Services (USCIS), approximately 140,000 employment-based immigrant visas are available each fiscal year for foreign nationals, their spouses and children seeking lawful permanent residence in the U.S.
The Visa Bulletin is a monthly report published by the U.S. Department of State (DOS) that identifies the five preference categories for employment-based immigrant visas and outlines who is eligible to apply for a permanent resident card (aka “green card”).
Understanding how to read the Visa Bulletin is crucial for employers and organizations directly involved with helping foreign nationals obtain a green card. Knowing how to interpret this document can significantly impact the application process and help with maintaining workforce continuity.
The employer’s guide to reading the Visa Bulletin covers the following:
Intended as a foundational reference for immigration professionals supporting their organizations — especially those new to understanding the employer-sponsored green card process — this guide provides clarity to help employers and global talent achieve employee immigration and business performance goals.*
Each Visa Bulletin contains statutory language and current information on preference categories, diversity visas and U.S. government employee special immigrant visas. The Visa Bulletin is released around two to three weeks ahead of the month it is in effect. For example, if it is May, DOS will already have released the May Visa Bulletin and will release the June Visa Bulletin in the middle of May.
The two primary sections of the Bulletin concern preference immigrant visas — employment-based preferences and family-based preferences. Family-based visas are intended for individuals with immediate relatives who are U.S. citizens or lawful permanent residents. Most employment-based visas are subject to employer sponsorship, as they are intended for foreign nationals who have job offers from U.S. employers and who meet specific skills, education and experience qualifications. Any unused family-based visas allotted for the fiscal year are added to the number of available employment-based visas. This guide focuses on the employment-based preferences section of the Visa Bulletin.
There are five employment-based preference categories outlined in the Visa Bulletin. USCIS defines these categories as follows:
First Preference (EB-1): Reserved for persons of extraordinary ability in the sciences, arts, education, business or athletics, including outstanding professors or researchers and certain multinational executives and managers.
Second Preference (EB-2): Reserved for persons who are members of professions holding advanced degrees or for persons with exceptional ability in the arts, sciences or business.
Third Preference (EB-3): Reserved for professionals, skilled workers and other workers.
Fourth Preference (EB-4): Reserved for “special immigrants,” including but not limited to certain religious workers, employees of U.S. foreign service posts and retired employees of international organizations.
Fifth Preference (EB-5): Reserved for business investors who invest $1,050,000 or $800,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Employers typically must obtain a U.S. Department of Labor (DOL) approved labor certification for the EB-2 and EB-3 preference categories. The labor certification satisfies two DOL regulatory criteria: 1) that there are insufficient U.S. workers who are available, qualified, willing and able to fill the offered position at the prevailing wage rate or higher; and 2) hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The priority date signals the date when the petition is filed with USCIS or the date when the application for a labor certification (“PERM”) is submitted. The Visa Bulletin indicates which priority dates are currently being processed and determines the applicant’s eligibility to move forward in the visa application process, influencing wait times and determining adjustment of status or when a visa may be issued. Employment-based category wait times can vary, with some classifications experiencing longer backlogs than others, depending on country of chargeability/birth and preference categories.
The priority date (an example is highlighted in the image below) can be found on the Form I-797, Approval Notice received from USCIS after the Immigrant Petition for Alien Worker (“Form I-140”) has been submitted. For labor certifications, the priority date can be found on the DOL labor certification (“PERM”) itself.
The Visa Bulletin splits eligibility for filing a lawful permanent residence application and adjudication into two tables for employment-based preferences (family-based preferences are also divided into these two tables):
1. Final Action Dates — Indicate who is eligible for final action (adjudication) on their permanent residence application and when a visa can be issued.
2. Dates for Filing — Indicate who is eligible to submit their application and supporting documents for further processing, even if the green card itself is not available. For U.S. applicants, USCIS may use the Final Action Dates to determine eligibility to file the adjustment of status application.
Not all applicants are eligible to file based on these dates. Eligibility depends on the specific visa category, chargeability area (the applicant’s country of birth or spouse’s country of birth — called “cross chargeability”) and the applicant’s priority date. Once the Visa Bulletin is published, USCIS will indicate on the Adjustment of Status Filing Charts from the Visa Bulletin page which chart (Final Action Dates or Dates for Filing) to use.
If immigrant visa availability for the fiscal year exceeds the number of applicants, USCIS will accept applications filed by applicants who are “current” under the Dates for Filing table. Otherwise, USCIS will use the Final Action Dates table to determine eligibility for filing the adjustment of status application. A priority date is considered current (signified by “C” on the chart) if the applicant’s priority date is earlier than the date listed in the appropriate table for the applicant’s preference category and country of birth, and the applicant is considered eligible to proceed with applying for a visa or adjusting their status.
However, if an applicant’s priority date will be current under the Dates for Filing table in the following month’s Visa Bulletin, but not current under the Final Action Dates table, the applicant must wait until USCIS makes its separate announcement of which table it will use to determine eligibility. For example, if an applicant whose country of birth is India has a priority date of June 27, 2020, under EB-2, based on the charts below they are not eligible to file under the Final Action Dates or Dates for Filing, as their priority date is after the dates listed on the chart.
To illustrate how to interpret the data from the respective charts, below is a sample from the January 2020 Visa Bulletin.
Final Action Dates for Employment-Based Preference Cases (January 2020)
Dates for Filing Employment-Based Visa Applications (January 2020)
In each table, the first column lists the different employment-based preference categories. The remaining columns list the different chargeability areas and provide the priority date cutoffs for the preference category and chargeability area. Each category may advance at different rates, meaning that some visa categories will have earlier dates than others.
When reading the Visa Bulletin, focus on the column that corresponds to the applicant’s visa category and country of chargeability. Formally speaking, chargeability refers to the rule that each foreign national applying for permanent residence must be “charged” or assigned to a foreign state for the purposes of determining whether certain immigrant visa numerical limitations under the Immigration and Nationality Act (INA) apply. A foreign national is typically charged to the country of their birth. Additionally, an applicant may be able to use their spouse’s country of birth — called “cross chargeability” — if the spouse is filing the adjustment of application as a derivative.
Under the INA, there are per-country limitations on the number of employment-based green cards that can be issued per year from the total 140,000 allotment. India, China, Mexico, Guatemala, Honduras, El Salvador and the Philippines have historically exceeded their statutory limit (“oversubscribed”), resulting in increasing backlogs that have multiplied the number of years before an employment-based green card may be issued for each applicant from that respective country. Significant changes in immigration policies with changing presidential administrations have also contributed to backlogs.
When the Visa Bulletin shows a priority date cutoff (signified by “U”), this means that immigrant visas are temporarily unavailable to all applicants in that particular preference category and chargeability country. The priority date cutoffs on Visa Bulletins typically move forward in time. However, “retrogression” can occur when the demand for immigrant visas fluctuates from month to month and may cause the progression of cutoff dates to slow, stop or move backward in time.
When more applicants apply for an immigrant visa in a specific preference category or from a specific country of birth than there are available immigrant visas, the visa preference category may retrogress in the following month’s Visa Bulletin and, ultimately, compound backlogs and further delay an applicant in receiving lawful permanent residence. Other contributing factors to retrogression may include a higher than expected number of visa applications and changes in immigration policy.
There are several common misconceptions about the Visa Bulletin charts. One of the most prevalent is that the dates listed are guarantees of visa issuance. Considering factors like retrogression, in actuality the dates are fluid and can change from month to month based on demand and processing capacity. Another misconception is that applicants should focus only on the Final Action Dates; however, USCIS declares which charts to use on a month-to-month basis and should be monitored regularly for timeline planning.
Understanding the Visa Bulletin can help employers incorporate strategic contingency planning to meet the immigration needs of their global talent pool and proactively address potential visa-related challenges to ensure business continuity. Clear and consistent communication with stakeholders, including foreign national employees, human resources, mobility professionals and legal counsel, is essential to address and adapt to processing timelines and maintain program stability and alignment with business goals in a challenging immigration environment.
For example, if employees with EB-2 or EB-3 status are running into extended delays (retrogression in the Visa Bulletin) because of their country affiliation or other factors, with the help of experienced counsel program stakeholders can develop workarounds to minimize workforce disruption. This approach not only mitigates risks but also fosters a more transparent and supportive work environment.
To stay informed, applicants should regularly check the Visa Bulletin, DOS resource pages and USCIS for the latest information. Additionally, following reputable immigration news sources and subscribing to updates from leading immigration law firms, such as BAL, can provide valuable insights and help with navigating complex visa processes.
For specific insights and updates on the Visa Bulletin in fiscal year 2025 and how your program can adapt to its impact, watch the free BAL Community Visa Bulletin Workshop.
* The information provided in this article is for general informational purposes only and is not intended to be legal advice. While we strive to ensure the accuracy and completeness of the information, we make no guarantees regarding its applicability to your specific situation.
H-1B registration opens.
Canada imposes a visa requirement on some travelers from Mexico.
And a new study from the Cato Institute shows that just 3% of immigrant applicants for green cards will receive them in 2024.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
After two years of travel restrictions, consulate closures and reduced operating capacity, the U.S. immigration system faces a tough climb to resume full functionality. Although U.S. Citizenship and Immigration Services (USCIS) recently announced that in anticipation of an “exceptionally high” number of employment-based visas available this fiscal year it is committed to “attempting to use all these visa numbers,” green card processing delays continue to dismay employers and foreign nationals alike. Because many unused green cards go to waste at the end of the fiscal year, without further action from USCIS, these delays will unnecessarily deprive tens of thousands of eligible immigrants of permanent legal resident status this year. With record numbers of employment based green card applications waiting in line, any wasted green card causes wait times to increase even further.
To its credit, USCIS has already taken some practical steps to improve green card processing, including waiving interviews for some employment-based green card applicants. The agency also released guidance encouraging employers to transfer eligible applicants to the first- and second-preference employment-based categories where more numbers are available.
However, given the practical realities of processing delays, budgetary shortfalls and the high number of unused green cards last year, combined with ongoing pandemic uncertainty, companies and foreign national employees remain concerned that the government will again fail to issue the full number of green cards by the end of the current fiscal year on September 30, 2022.
As immigration attorneys who formerly served at USCIS, we recognize the operational challenges to efficient green card processing, the impact of green card delays on U.S. businesses and their employees who are waiting in long queues, and the need for further changes. To improve USCIS’s chance to fully utilize available visa numbers, we suggest four actions USCIS should take.
First, USCIS should designate “tiger teams” at each Service Center that would tackle the required number of cases to reach the cap and provide proper supervisory review to ensure the integrity of each case. Originally utilized by NASA to avert disaster on the Apollo 13 mission, tiger teams consist of experienced specialists selected for their experience, energy, and imagination, who will focus on addressing institutional problems and streamlining processes to achieve their goals. USCIS has used tiger teams in the past and should reinstate this approach to create dedicated teams that will relentlessly focus on green card processing hindrances and improve performance.
Second, USCIS should reduce the volume of cases sent to its Field Offices for interview by setting up an effective waiver process for cases posing no eligibility or security concerns. Where USCIS does require interviews, it should conduct them via video whenever appropriate so that any Field Office with capacity can adjudicate the case. This would help avoid scheduling challenges associated with arranging in-person interviews at Field Offices around the country and prevent delays.
Third, the agency should extend the validity of the required medical exam for green card applicants. Last summer, USCIS temporarily extended the validity from two years to four years, but that policy expired Oct. 1, 2021. Re-implementing the longer validity period for medical exams would help alleviate additional delays by reducing the frequency of applicants having to renew their medical examinations.
Finally, USCIS should streamline its handling of case files, both by consolidating related case files early in processing and by increasing digitization efforts. An audit by the DHS Office of the Inspector General identified manual processing as a primary obstacle to USCIS processing speed and recommended USCIS fully digitize its workload. USCIS must accelerate its progress in digitization, electronic filings, and electronic adjudications to improve its processing times across the agency.
USCIS can implement some of these suggestions quickly, while others—such as full digitization—will take years to realize. However, each investment USCIS makes to improve processing speed and reduce green card backlogs will benefit the agency itself, foreign nationals, their employers, and the U.S. economy. One report estimates that wasted green cards reduce U.S. GDP by billions each year. Enabling efficient pursuit of the American dream by improved green card processes not only benefits immigrants, but also aids business productivity, inspires innovation, and provides a needed boost to U.S. economic recovery.
Kelli Duehning is a Partner with Berry Appleman & Leiden LLP. She advises clients on immigration compliance and program strategy. Kelli joined BAL after a 17-year career with USCIS and INS where she headed the agency’s legal strategies in the western U.S.
Steven Plastrik is a Senior Associate with BAL’s Government Strategies team. He advises clients on immigration compliance and H-1B regulations and policies. Steve previously served as Associate Counsel at USCIS’s Vermont Service Center where he advised officers on employment-based nonimmigrant eligibility.
This article was originally published in Law360 on Mar. 28, 2022.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
DALLAS, March 3, 2022 /PRNewswire/ — Immigration technology provider Dunasi, in partnership with leading immigration firm BAL, has released a groundbreaking white paper, detailing their analysis of U.S. Citizenship and Immigration Services (USCIS) processing times. Leveraging 40 years of immigration experience and aggregated data from over 1.5 million cases, BAL compared its data to USCIS data to determine how accurate USCIS processing estimates are and to identify trends in processing timelines. 2021 Processing Time Trends – Dunasi (dunasitech.com)
“With the coronavirus pandemic compounding immigration delays, our clients need a trusted source to give them an accurate answer about their case processing time,” said Chanille Juneau, Chief Technology Officer at BAL. “We know BAL’s projections tend to be more accurate than USCIS estimates, so we did a deep dive into the data to help immigration applicants understand what to expect for each case type.”
The white paper analyzes the accuracy of USCIS predictions and recent processing trends, answering frequently asked questions such as: “How do USCIS processing time predictions compare with actual processing times?” and “Which application types are most delayed?”
Along with pinpointing the case types and service centers experiencing the lengthiest processing delays, the paper evaluates the role of recent immigration developments on processing times, such as the DHS Office of the Inspector General’s report criticizing USCIS’s manual processing system.
After identifying some concerning USCIS trends, the paper looks at USCIS plans to modernize its processes and speed case resolution. Drawing on BAL’s legal expertise, the paper also offers practical strategies for foreign nationals to improve their case processing times.
“We’re proud to lead the industry in innovative immigration technology, and we feel an obligation to use our wealth of tech expertise to benefit people around the world,” said BAL Managing Partner Jeremy Fudge. “That’s exactly what we’ve done in this report; Chanille and her team have discovered useful insights, identifying USCIS trends and discrepancies, to give foreign nationals more confidence in their immigration journeys.”
About Berry Appleman & Leiden LLP (BAL) BAL, the world’s leading corporate immigration law firm, ranks #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), #1 on Law360’s Diversity Snapshot (2020 and 2021), and the #1 Law Firm for Women according to the National Law Journal (2019, 2020 and 2021). BAL’s Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek‘s Most Innovative Law Firm Operations Team of 2021. BAL is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, BAL has consistently provided immigration expertise, top-notch information security and leading technology innovation. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers®, Chambers and Partners, The Legal 500, and Who’s Who Legal. See website for details: https://www.bal.com.
SOURCE Berry Appleman & Leiden LLP
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
For many U.S. immigrants, achieving lawful permanent residence, commonly known as a “green card,” is a momentous milestone and the final step in their immigration journey.
Some employers assume that these employees are exempt from travel and entry restrictions once they have a valid green card. After all, employers no longer need to file extension petitions or renew visa stamps for these employees. The false perception that green-card holders enjoy unrestricted entry into the U.S. may also have been reinforced by the fact that green-card holders are exempt from many of the recent COVID-19 travel bans.
However, as we near the one-year mark since COVID-19 shuttered borders around the world, employers should revisit the often-forgotten restrictions on green-card holders who remain outside the U.S. for over one year.
Generally, when green-card holders enter the U.S., an immigration officer will determine their intent to reside in the U.S. and confirm the validity of their green card and reentry permit. Green-card holders can document their intent to reside in the U.S. through evidence of close ties in the U.S., such as maintaining a principal U.S. residence, paying taxes, holding a job in the U.S., having bank accounts or owning property in the U.S. Additionally, immigration officers will consider both the length and frequency of trips as factors in deciding if the employee intends to reside in the U.S.
Trips lasting less than a year. Some green-card holders assume that frequent trips abroad for less than six months do not present any red flags. This is not accurate. Immigration officers have the authority and discretion to question a green-card holder’s intent, regardless of the length or frequency of a trip. Additionally, green-card holders will likely experience more scrutiny at the port of entry when the length of the trip is over six months. Although COVID-19 may provide a reasonable explanation for lengthy trips, green-card holders should be prepared for additional questions upon return. All green-card holders must present their unexpired green cards as a valid entry document.
Trips lasting more than one year. Employers and employees should focus on longer absences as the pandemic enters its second year. Green-card holders who leave the U.S. for longer than one year face detrimental consequences: Not only are they presumed to have abandoned their permanent-residence status, the green card becomes invalid for reentry into the U.S. In this scenario, they must apply for and obtain a “returning resident” (SB-1) immigrant visa at the U.S. embassy or consulate, showing that they departed the U.S. with the intent to return and that the extended stay abroad was for reasons beyond their control.
While green-card holders may technically travel directly to the U.S. without applying for a returning-resident visa, this approach is much riskier because the decision to admit the employee is left to the discretion of the immigration officer at the port of entry, both to waive the requirement that the employee show valid documents and to confirm that he or she did not intend to abandon permanent residence status.
Generally, the longer the trip, the more challenging the reentry. If feasible, obtaining a reentry permit before departing the U.S. can help prevent issues. For employees who have been stranded abroad during COVID-19, employers should review entry restrictions for green-card holders and take steps now to avoid unnecessary obstacles for returning employees and to ease their transition back to the U.S.
This article was originally published in the Washington Business Journal.
The government recently announced rapid progression of green card queues beginning Oct. 1, when the fiscal year began and quotas reset on green cards, allowing thousands more employment-based immigrants to be eligible to file their green card applications this month.
While this is great news for employees who have languished in the green card backlog for years, employers and employees should prepare for anticipated delays in processing that may complicate the green card path during the wait.
The COVID-19 situation has created some unexpected trends in the green card process in recent months. Since May, the State Department’s Visa Bulletin has shown rapid advancement of the queues for many employment-based categories, in part because so few visas are being issued due to U.S. consulate closures and multiple travel bans. With unused visas carrying over to the new fiscal year, advancements in October are even larger for purposes of green card filing eligibility. For example, Indian nationals in the employment-based third preference category, who typically wait a decade or more for a green card, saw their filing eligibility dates advance by five years. This tremendous progression in green card availability gives hope to many applicants who began the process years ago.
But will hopes for a quick result be dashed by processing delays? The flip side to the green card windfall is that lagging USCIS processing times have created additional challenges and risks, as the agency struggles with budget issues. Although USCIS scrapped plans to furlough 13,000 employees, it specifically warned of longer green card adjudication times. Adjudication delays can carry serious consequences for employers and employees, who must maintain their immigration status during the wait.
Even after an approval, successful applicants would normally receive their physical green card within a few months. But in July, the USCIS Ombudsman’s office announced that the agency faces reduced capacity to print green cards. Despite litigation, significant concerns remain that delays in green card issuance will prevent those who have finally achieved lawful permanent resident status from demonstrating proof of this approval, potentially inhibiting their ability to work or travel internationally.
In addition to the personal toll on employees, processing delays create uncertainty and the risk that their work authorization may lapse. Many green card applicants who hold a valid work visa may be ineligible to file for extensions in certain nonimmigrant categories like TN or E, or they may have reached maximum time limits. These employees may face heightened scrutiny and higher likelihood of denial for filing repeated extensions in common work-visa categories. There is also the risk that during lengthy delays, priority dates may retrogress again, requiring that the employee wait even longer for a visa to be available before USCIS adjudicates the case. Moreover, until they get their green cards, many temporary work-visa holders remain subject to the various travel bans and are effectively unable to travel internationally.
This unique time is a reminder to employees and their employers that maintaining valid immigration status, rather than relying on the quick issuance of a green card, is a critical compliance measure. While green card applicants should be encouraged by the Visa Bulletin progression since the COVID crisis began, employers and employees should be aware that obtaining the approval has become an additional hurdle, and they should explore options and strategies for extending employment authorization if their green card is delayed.
John Hamill is a Senior Associate in the New York office of Berry Appleman & Leiden LLP.
This article was originally published in the California Business Journal.
Employees in the green card process are seeing additional flexibility in processing as the COVID-19 national emergency continues to complicate the normal steps, and the government appears to be relaxing certain requirements.
All U.S. Citizenship and Immigration Services (USCIS) offices have been closed to the public since March 18 and are not scheduled to reopen until at least May 4, creating delays for applicants needing to attend biometrics appointments and green card interviews.
However, in recent days the agency announced flexible rules on biometrics and appears to be waiving green card interviews in some cases where interviews have been canceled because of the office closures. On March 30, USCIS announced that it will process certain requests to extend employment authorization documents without a biometrics appointment by using the applicant’s previously submitted biometrics. This temporary measure, in place for the duration of the office closures, will mitigate delays and help prevent lapses in employment authorization.
Though the agency has not announced whether it will relax the interview requirement, some green card applicants whose appointments were canceled because of the COVID-19 office closures have seen their case status updated to indicate their adjustment of status application has been approved and have received their green cards in the mail shortly thereafter.
Additionally, green card applicants who file their application without the medical exam form or with an expired medical exam form normally receive a courtesy notice indicating that they should bring their medical form to the USCIS interview. More recently, however, USCIS has been issuing Requests for Evidence instructing green card applicants to mail the medical form to USCIS directly—another signal that the agency may be adopting a policy of waiving green card interviews for the time being for some applicants.
For employees in earlier stages of the green card process, the Labor Department is also taking temporary steps to ease the PERM labor certification process. On March 25 the department began issuing labor certifications and final determinations via email and will continue to do so at least through June 30. However, applicants and employers must still sign the labor certification with an original wet signature before filing the I-140 petition with USCIS. Unlike USCIS, which is accepting electronically reproduced original signatures on USCIS forms for the duration of the national emergency, the Labor Department has yet to authorize submission of photocopies of original wet signatures on labor certifications.
What should employers and employment-based immigrants expect from these agencies in the coming weeks? DHS Acting Secretary Chad Wolf indicated this week that USCIS is considering additional options to give flexibility to petitioners and applicants, but BAL anticipates that the agency will take a piecemeal approach rather than make wholesale changes (such as automatic extensions of status).
The Labor Department is likely to release guidance in the coming days that should clarify additional procedures during the national emergency and provide greater flexibility in requirements and timelines for employees in the green card process.
Heather Oh is a Senior Associate in the New York City office of Berry Appleman & Leiden LLP.