The labor certification process (also known as “PERM”) is one of the most common ways foreign nationals working in the U.S. obtain permanent residence, or a “green card”, through their employers. This is a three-step process involving advertising the job being offered to the foreign national and determining whether U.S. workers are qualified and willing to fill the position. If qualified U.S. workers are not available a labor certification application may be certified by the U.S. Department of Labor, allowing the employer to file an immigrant visa petition on behalf of the foreign national employee that will permit the employee to obtain a green card. As immigration applications have become more challenging and time-consuming, currently the whole process of getting a green card through labor certification may take several years for nationals of countries that are not subject to green card backlogs and may take a up to a decade or more for nationals of backlogged countries such as India.
Step One: The Application for Permanent Employment Certification
Filing a labor certification application (Application for Permanent Employment Certification, Form ETA 9089) is the first step in the process and requires the employer to carefully define the duties and requirements of the job. A wage determination is then requested from the Department of Labor (DOL), which currently takes 3-4 months. If the wage is acceptable, the employer can conduct the recruitment for the job, which must follow very specific DOL guidelines, including mandatory Sunday ads in the area newspaper of general circulation, a job order with the State Workforce Agency, and a posting at the job location. The employer must carefully consider the job applicants to determine whether U.S. workers are qualified for the position. If no qualified U.S. workers are willing and available to fill the position the employer may submit Form ETA 9089 to the DOL. It is currently taking 5-6 months for the DOL to process the application, or longer if the application is audited. In case of audit the DOL will request copies of the ads, postings, resumes, and other recruitment materials to determine whether the recruitment was properly conducted and whether any U.S. workers were qualified for the position.
Step Two: The Immigrant Visa Petition
When the form ETA 9089 is certified by the DOL the employer may then proceed to the second step in the process, the filing of the immigrant visa petition (form I-140). This petition confirms that the employee is qualified for the position as described in form ETA 9089 and that the employer still is offering the job to the employee and can pay the required wage. Currently this petition may be filed with premium processing, for an additional fee of $1,410, which guarantees a response from USCIS (U.S. Citizenship and Immigration Services) in fifteen calendar days. Otherwise, petitions filed without premium processing may take six months or more to be adjudicated. After the I-140 is approved USCIS will begin processing the green card application, if it has been filed. Nationals of countries with significant green card backlogs may wait many years to file their green card application, as explained below.
Step Three: The Green Card Application
The green card application (form I-485, or adjustment of status application) is the last step in the process, if the employee is already in the United States (usually with an H-1B visa). This application may be filed along with the I-140 petition, or afterwards, depending on whether the employee is eligible to apply for a green card immediately or is a national of one of the countries subject to green card backlogs. The wait time for the green card is determined by the employee’s country of nationality and employment-based immigration category (see below). Once the I-140 is approved the green card application will be adjudicated by USCIS (if it has been filed), a process that may take 6 months to a year, or possibly even more. There is no premium processing available to expedite the green card application. However, along with the green card application the employee can apply for a work permit and travel document that will allow them to travel internationally and work in the U.S. while the green card application is pending. In addition, the Trump administration now requires all employment-based green card applicants to attend an interview at their local USCIS field office before the green card can be approved.
The Visa Bulletin and the Green Card Backlog
Unfortunately, the U.S. immigration system is antiquated and has not been updated to meet employer demand for decades. As a result, there is a severe green card backlog for certain nationalities in many immigrant visa categories. Most foreign national employees apply for green cards through the labor certification process in the second and third employment-based categories, known as “EB-2” and “EB-3”. The EB-2 category is generally for jobs requiring advanced degrees, and the EB-3 category is generally for jobs requiring bachelor’s degrees. There aren’t enough immigrant visas (green cards) available in these categories for nationals of China and India, and sometimes other nationalities as well, and wait times can be five to ten years or even more for Indians. The wait times are determined by the applicant’s priority date, usually the date on which the labor certification is filed, and are updated each month in the U.S. Department of State Visa Bulletin.
Begin the Green Card Process Early
Generally speaking, under the Trump administration obtaining immigration benefits has become slower and more difficult and green card backlogs are getting longer. Most foreign national employees applying for green cards using the labor certification process are on H-1B visas, which only last 6 years. However, if the labor certification application is filed at least a year before the 6th year of H-1B status ends, at the very latest, the H-1B can be extended beyond the 6th year repeatedly for an unlimited duration until the employee gets their green card. However, because of the extensive backlogs for many nationalities and the increased uncertainty in all immigration applications, it is highly advisable to begin the labor certification processes as soon as possible after the employee obtains their H-1B visa.
