There are generally three steps to obtain an employment-based green card.
- Step 1: PERM labor certification with the Department of Labor
- Step 2: I-140 immigrant petition
- Step 3: I-485 (the actual “green card” application)
If you qualify for classification under EB-1 or EB-2 National Interest Waiver, you will get to skip Step 1 and the lengthy PERM process. No PERM is required for EB-1 or EB-2 National Interest Waiver, and you can move directly to Step 2!
If you qualify under a standard EB-2 (not National Interest Waiver) or EB-3, then you must complete the PERM process.
These steps may seem difficult at first, but Legalpad is here to help you navigate the green card journey. Let’s dig deeper into each step of the green card process.
Step 1: PERM labor certification with the Department of Labor
People who qualify under EB-1 or EB-2 National Interest Waiver can skip the PERM step.
The purpose of the PERM labor certification is to test the U.S. labor market to ensure that there is no qualified U.S. worker who is “able, willing, qualified, and available” to perform the offered role. The employer must establish the minimum education, experience, skills, and salary required for the position. The position must then be advertised in several different outlets, including printed newspaper ads, to try and recruit a qualified U.S. worker.
The entire PERM process can easily take one year to complete, to allow for compliance of all required recruitment steps, the mandatory waiting period for candidates to apply, and time for the Department of Labor to review the submitted PERM application. If a qualified U.S. worker is found, or if the Department of Labor audits the submitted PERM application, this will extend the timeline.
Step 2: I-140 immigrant petition
EB-1, EB-2, EB-3, etc. are different classifications for the I-140 immigrant petition.
If you are submitting the I-140 immigrant petition under the standard EB-2 or EB-3 classifications, your U.S. employer cannot file the I-140 immigrant petition until after your PERM has been certified by the Department of Labor.
If you are submitting the I-140 immigrant petition under the EB-1 or EB-2 National Interest Waiver classifications, you get to skip the PERM process.
The I-140 immigrant petition allows you to apply for a green card and become a Lawful Permanent Resident, subject to your priority date eligibility (your place in the green card queue). The I-140, by itself, does not provide status or work authorization, but you cannot file an employment-based green card application without the I-140 immigrant petition.
A few things to keep in mind at the I-140 step:
- Whether to file the I-140 as a standalone or concurrent filing: If your priority date is current (meaning you are at the front of the green card queue), you can decide whether you want to file the I-140 as standalone petition, or whether you want to concurrently file the I-140 and I-485 together. For example, based on the August 2020 Visa Bulletin, if you were born in India and filing under EB-2, you would not have the option to concurrently file the I-140 and the I-485 because your priority is not current. On the other hand, if you were born in Italy and filing under EB-1, your priority date would be current and you have the option whether to file the I-140 as a standalone or to file concurrently.
The benefit for a concurrent filing is that it may slightly speed up the green card timeline, and you will also be able to obtain your green card-based work authorization (Employment Authorization Document) and travel document (Advance Parole) earlier. The drawback of a concurrent filing is that, if your I-140 petition is ultimately denied, U.S. Citizenship and Immigration Services will stop processing the I-485 application, because denial of the I-140 means that you no longer have a basis for the green card application. You would have wasted money, time, and effort on the I-485 application that will not be processed.
If your priority date is current, the decision whether to proceed with the I-140 as a standalone on concurrent filing is very personal, based on your needs and risk evaluations. Legalpad is here to help you make an informed decision.
- Premium processing: For an additional fee to USCIS, the government will review eligible I-140 petitions within 15 days. As of August 2020, the premium processing fee is $1440. You have the option to file EB-1A Alien of Extraordinary Ability, EB-1B Outstanding Researcher, and standard PERM-based EB-2 and EB-3 with premium processing. EB-1C Multinational Manager and EB-2 National Interest Waivers are not eligible for premium processing.
- Intent: Only H-1B and L-1 statuses have “dual intent”, meaning that you can be in H-1B and L-1 status and simultaneously have the intent to remain in the U.S. permanently. Also, the intent issue only comes up at the I-485 stage, and does not apply at the I-140 stage.
What this means is that, even though the I-140 is an “immigrant petition”, you can still travel internationally and re-enter the U.S. after a standalone I-140 petition is filed and approved, without any conflict in intent. For example, you can be in O-1 status with an approved I-140 petition, and still re-enter the U.S. in O-1 status after international travel, as long as you have all the necessary documents for O-1 travel (valid passport, valid O-1 visa stamp, O-1 approval notice) and are not subject to any other travel restrictions.
On the other hand, if you file the I-140 and I-485 concurrently, there may be intent issues and travel limitations if you are in a status other than H-1B and L-1. We will elaborate on intent issues below.
- Retain prior approval notice: If you have a prior I-140 approval notice, you will be able to retain the original priority date so that you don’t lose your place in the green card line. For example, if Employer A filed an EB-3 I-140 immigrant petition for you with a priority date of October 12, 2018, you will be able to retain the October 12, 2018 priority date if you later file an EB-1 I-140 immigrant petition. If your EB-1 is approved, the EB-1 approval notice will retain the priority date of October 12, 2018.
- No separate I-140 approval for dependents: The I-140 is an employment-based immigrant petition. Only one I-140 approval will be issued for you, and you will not receive separate I-140 approval notices for your spouse and/or children. When your priority date is current and you are ready to file the I-485 application, you can use your I-140 approval notice as a basis to file the I-485 for you and your eligible dependents.
- Job changes: Job changes may impact your I-140 immigrant petition. For example, PERM-based EB-2 and EB-3 are job duties, work location, and employer specific. If you change job duties, work location, or employer, you may require a new PERM and I-140.
EB-1 and EB-2 National Interest Waiver can have more flexibility regarding job changes, but whether a new I-140 filing is required would be fact-specific on the job change. If you are contemplating a job change during or after I-140 approval, you should reach out to an immigration attorney to evaluate the impact of the job change on your I-140.
Step 3: I-485 (the “green card” application)
We are finally at the I-485 step, the actual “green card” application.
The I-485 cannot be filed unless your priority date is current. Once the priority date is current, the I-485 can be filed for you and any eligible dependents (spouse and unmarried children under 21). Along with the I-485 application, you can elect to file the green card-based Employment Authorization Document (EAD) and Advance Parole (AP). The EAD and AP are alternative options for work authorization and travel documentation that you can use while your actual green card application is pending.
I-485 processing time is currently around one year, but processing time can vary case-by- case and there is no premium processing option. Estimated processing times are available here. If you file the I-485 with the EAD and AP applications, you will receive your EAD and AP in about 4-6 months.
A few things to keep in mind at the I-485 stage:
- Intent: Only H-1B and L-1 statuses have “dual intent”. What this means is that, if you are in H-1B or L-1 status, you can travel internationally and re-enter in H-1B/L-1, even after the I-485 has been filed (if you have valid travel documentations and are not subject to any other travel restrictions).
For statuses other than H-1B and L-1, there are possible intent concerns. For example, if you are in the U.S. in O-1 or TN, even if your priority date is current, you will need to wait at least 90 days from your last entry in the U.S. before the I-485 can be filed. Also, once the I-485 is filed, you must remain in the U.S. until the advance parole is issued. This is because, after the I-485 is filed, if you travel internationally and re-enter in O-1 or TN, you risk abandonment if the green card application due to the conflict in intent.
- Cross-chargeability: If your spouse’s country is more current in the Visa Bulletin, you can use your spouse’s country of birth for filing both I-485 applications. For example, if you were born in India and your spouse was born in France, you can use your spouse’s country of birth for eligibility to file the I-485 for both you and your spouse.
- AOS portability: If your I-485 has been pending for at least 180 days and you are changing to a “same or similar” occupation, then you may be able to “port” the existing I-485 application to the new employer without needing to restart the employment-based green card process. If you are contemplating a job change while the I-485 is pending, you should reach out to an immigration attorney to evaluate the impact of the job change on your I-485 application.
If your priority date is current, you may be able to complete all three steps and obtain a green card in less than 2 years. However, if USCIS issues a Request for Evidence, this could extend the general timeline.
If your priority date is not current, depending on your country of birth, the green card process could take longer because you cannot file the last stage (the I-485 application) until your priority date becomes current.
Let’s walk through a few examples, and see the green card process in action!
Example 1: Krishna was born in India. He is currently in the U.S. in O-1 status, and wants to proceed with an EB-1 I-140 immigrant petition. Krishna is unmarried. He does not have a prior I-140 approval notice.
Proceeding with the EB-1 will allow Krishna to skip the PERM process.
Because Krishna was born in India, he is not able to file the I-140 and I-485 concurrently because his priority date is not current. He will need to submit the EB-1 I-140 as a standalone petition, and then wait until his priority date becomes current to file the I-485 application.
After the I-140 is filed and approved, Krishna can still travel internationally and re-enter the U.S., as long as he has valid O-1 documentation and is not subject to any other travel restrictions. He will need to maintain his O-1 status, even after the I-140 is approved.
Once his priority date becomes current, he can then file the I-485 application. He would need to wait at least 90 days after his last entry into the U.S. in O-1 status before the I-485 can be filed, to avoid any conflict in intent. Once the I-485 has been filed, he should remain in the U.S. until the Advance Parole is issued (which will take 4-6 months after I-485 filing).
Example 2: Ling was born in Germany. She is currently in the U.S. in H-1B status, and wants to proceed with an EB-2 National Interest Waiver. She is married to a German citizen, and her spouse is currently in H-4 dependent status.
If she is eligible for an E-2 National Interest Waiver, Ling will be able to skip the PERM process.
Because she was born in Germany, her priority date is current in the August 2020 Visa Bulletin. She can decide whether to file the EB-2 National Interest Waiver as a standalone petition, or to concurrently file the EB-2 NIW and I-485 for both her and her spouse at the same time.
If she proceeds with the concurrent EB-2 NIW and I-485, there is no conflict in intent because she is in H-1B status (a “dual intent” classification). Even after the I-485 is filed, she will be able to travel internationally and re-enter the U.S. in H-1B status, if she has valid H-1B documentation and is not subject to any other travel restrictions.
Her husband will not have a separate EB-2 NIW approval notice. He is eligible to apply for the I-485 under Ling’s I-140.
The employment-based green card process can seem very intimidating at first. Legalpad is here to provide clarity, and we can help you make the right decision based on your personal needs to get you on the path to obtain a green card. Feel free to reach out to us to learn more!