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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.
In this week’s episode, BAL’s Chad Li and Kyle McLaughlin discuss common questions about the PERM process and identify four main considerations employers should be aware of when navigating its complexities. Plus, the latest U.S. and global immigration news.
This podcast 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.
In this week’s episode, BAL’s Kristi Ngo explains why the EB-5 visa is a viable alternative to the traditional PERM green card path for certain foreign national investors. Plus, the latest U.S. and global immigration news.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL news site.
USCIS reduces its case backlog.
The Department of Labor extends a deadline for input on its Schedule A job classification list.
And how a pair of Supreme Court cases about the fishing industry could reshape immigration processes.
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.
In recent years, several U.S. states and localities have begun to introduce pay transparency laws with the aim of reducing pay inequities and closing the gender wage gap. There are notable differences among these laws, as some require only disclosure upon request by a candidate while others require disclosure of wage ranges on all job postings themselves. These laws introduce an entirely new set of risks to be evaluated and decisions to be made by internal and external counsel for any employer using the PERM recruitment process to extend permanent job offers to foreign nationals.
With a few exceptions, a company wishing to permanently employ a foreign worker in the United States must proceed through the PERM process. This process works first to identify whether a minimally qualified U.S. worker may be available and willing to accept a given role. A company may proceed in offering that role to a foreign worker only if a minimally qualified, willing and available U.S. worker is not found. PERM regulations require employers to post recruitment through various channels mandated by the Department of Labor, but they do not require employers to post wage ranges or disclose benefits in public job postings.
However, an employer going through the PERM process is required to seek a prevailing wage request for each sponsored job from the DOL. At times, the prevailing wage issued by the DOL may be higher than the lower end of the company’s actual wage range. In these situations, a company may proceed with their PERM process but cannot offer a rate lower than the prevailing wage for that particular role.
This situation introduces an interesting conundrum for employers seeking to simultaneously comply with PERM regulations and state- or locality-driven laws on pay transparency. For instance:
First, it is vital for employers to engage their employment counsel to determine whether a particular wage transparency law applies to them as an employer or to a particular position for which they are recruiting. In many cases, employers must now consider the chosen home addresses of their current employees as well as the candidate pool for the position for which they are hiring. This means that a particular job posting may be subject to wage transparency laws for multiple jurisdictions. In addition, the employer must also work with their employment counsel to determine what constitutes a “good faith” range of the minimum and maximum pay for the position. While some employers provide a very broad range, encompassing actual minimums and the maximum conceivable amount they might be willing to pay, others have provided a scale along the bell curve, or any variation between.
After the wage ranges are vetted and approved by employment counsel, employers are then faced with the challenge of complying with federal PERM regulations, which can sometimes run in direct opposition. For example, while wage transparency laws require employers to post good faith wage ranges, PERM regulations do not permit the lower end of that range to fall short of the prevailing wage determination.
Colorado was the first state to mandate pay transparency in public job postings and quickly recognized the inherent contradiction between their wage transparency law and federal PERM regulations. This led to an informal conclusion that state wage transparency laws would not be enforced in the context of PERM recruitment. However, even this introduces risks for employers, as major employers have been charged recently with conducting PERM recruitment in a manner that is completely at odds with normal recruitment practices. Advertising for PERM roles with different wage content than a company’s normal postings may open it up to additional scrutiny by the state or by the DOL or even the Department of Justice.
As more states and localities enact varied pay transparency laws, the complications will continue to increase. Companies’ in-house counsel, immigration and global mobility teams must take care to partner closely with both their employment counsel and their immigration counsel to ensure that they are implementing practices that comply with both state and federal laws in this space.
Stephanie S. Pimentel is a BAL Partner in BAL’s Dallas headquarters and Asha George is a Senior Associate in BAL’s New York City office.