In EB permanent residence, commonly referred to as “green card,” cases there are and have always been many unknown factors that impact processing times. The timeframes can range by years from one case to the next. Procedures can change in mid-stream, disrupting plans and strategies.
Labor Certification – PERM
All labor certifications are filed under the PERM process. Under PERM, all cases must be pre-advertised. There is a 30-day “quiet period” following the completion of recruitment efforts. The case can only be filed after the 30 days. Thus, the time required for preparation of a PERM case is a combination of this quiet period, a 30-day State Workforce Agency (SWA) job order requirement, a number of recruitment requirements, a job posting, and the need to obtain a prevailing wage determination. Of course, all of the time necessary for the preparation and review of a case, and communication between the lawyer and the employer and/or employee, must also be considered. Additional time is required for the employer to screen resumes submitted in response to recruitment efforts and to interview potentially qualified applicants. Depending upon how quickly the prevailing wage determination is issued, whether the employer has engaged in any recruitment efforts prior to the start of the PERM case, how quickly the employer or employee provides information and documentation, and the number and qualifications of job applicants, it could take as long as four to six months for the PERM case to be ready for filing.
Once it is filed, the U.S. Department of Labor (DOL) estimates processing times of up to 60 days. Historically, PERM processing timeframes have ranged from a few days to more than eleven months. If there is an audit by the DOL, there would be an extended delay. The time necessary for the additional processing of the audited PERM application is unknown and can add an additional year or more to the process. If all goes well, however, the time from the initiation of the PERM process to approval would be approximately six to ten months.
After Labor Approval – I-140 Petition
Following the labor certification approval, the case moves to the stages of the employer petition (I-140) and the adjustment of status (I-485). It would also be possible to select consular processing instead of I-485. This is when the time estimate becomes quite uncertain. First, there is the I-140 petition. The time it takes to prepare this for filing can depend upon the availability of documents and the speed of action by the employer, employee, and attorney. I-140s have to be supported by the employer’s financial data and proof that the employee / beneficiary has the required education and work experience. The safer and faster route is to try and gather all or most of this type of documentation in advance, in parallel with the PERM LC filing. It may be necessary, however, to obtain updated financial information that could slow the preparation time. There are no advertising or other time-bound requirements that dictate the time-frame for preparation and filing of the I-140 petition.
At this time, the I-140 petitions are processed by the USCIS Nebraska and Texas Service Centers. A general estimate of the expected processing time can be obtained based upon the Service Center Processing reports, available on the USCIS website and MVP Law Group’s website. The processing time for any particular case can vary, depending upon the service center, whether there is an RFE issued, and general variations from case to case. Typical processing times range from four months to one year. It is possible to expedite most I-140 filings by using premium processing. It is not necessary to have an I-140 approval to file the I-485. This is where the real uncertainty comes about with processing times.
Adjustment of Status – I-485 Application
Once the labor certification is approved, the general procedures allow for concurrent filing of the I-140 and I-485. However, the I-485 cannot be filed unless the priority date is current for the particular case. The I-485 can take some time to prepare, depending upon how much work was done in advance. It is necessary to have a medical exam, which means waiting for a doctor’s appointment and test results. It is also necessary to document immigration status history, provide birth and marriage records, and biographical information. Those who are more organized about their documents and have less complicated histories will have an easier time providing what is needed. If documents are needed from abroad, it is best to work on obtaining these well in advance.
It is not always possible to file the I-485 with the I-140 due to unavailability of visa numbers. Essentially, in order to file an I-485, there must be an available visa number in the particular category. This concept of visa unavailability, retrogression, and visa cutoff dates is vital to the understanding of the immigration process at this time.
Possible Delays in Filing Due to Lack of Visa Numbers
So, a person may have an approved labor certification, and even an approved I-140, but not be able to move forward to the I-485 stage. This problem is severe for people from all countries in the employment-based, third preference EB-3 category, and for those from India and China in EB-2. Following labor certification approval, the employer can file the I-140 petition and even obtain its approval without regard to visa number availability. The case will stall at that point, however, until visa numbers are available for the individual’s employment-based category so that the I-485 can be filed. This delay could be a few weeks, a few months, or in many cases, a few years or longer. This is why it is virtually impossible to answer the question, “How long will it take to get a green card?”
Possible Delays in Adjudication Due to Retrogression
If a visa number is available and a case is filed, it is still not immune to delays caused by a lack of visa numbers known as retrogression. For an I-485 to be approved there must be a visa number available on the date of the I-485 approval. Thus, if a case is filed while visa numbers are available, and then the cutoff dates move backward, or retrogress, while it is pending, the case will have to wait until the visa numbers become current again. The time delay, again, is an unknown factor. While this tends to be less of a problem with I-485 cases being filed as of this writing, historically, it has been an enormous complication, impacting many cases.
If one elects to take the route of consular processing, instead of adjustment of status, the analysis is similar. In this event, the I-140 is filed after the labor certification approval. It is then necessary to wait for the I-140 approval to move forward. The processing time ultimately depends upon how quickly the case moves through to an appointment at the particular consulate. This is generally a number of months, perhaps between four to eight months. A case cannot be approved at the consulate for an immigrant visa, however, unless there is a visa number available. Therefore, consular cases are also delayed by retrogression, and are held at the National Visa Center (NVC) awaiting visa number availability.
There are numerous other matters that can cause variations in processing times. Receipt of requests for evidence (RFEs), can slow the processing times. Putting aside retrogression, enormous variations in processing times are evident at the various service centers and local USCIS offices. While most employment-based green card cases for professionals are ruled upon at the service centers, some are sent to the local USCIS offices for interview. This can cause additional months of delay.
Green card cases can be complex, and anyone who is contemplating filing a green card case should consult with our knowledgeable and experienced attorneys at MVP Law Group in advance of filing.