If you are a U.S. employer wishing to hire foreign workers and sponsor them for U.S. permanent residence (in which case they can work for you over the long term), you are no doubt interested in how long this might take. You will likely need to complete several immigration processes on behalf of any particular worker before he or she can obtain a green card. Each of these processes can, by itself, take from several months to several years to complete.
This article provides a detailed timeline to guide employers in sponsoring a foreign worker for a green card. We explain the overall steps of sponsorship, how long each step typically lasts, and expediting procedures that may speed the process along.
At the outset, bear in mind that the actual processing timeline for sponsoring a foreign worker can vary significantly from case to case. A number of delays can occur in the processing, depending upon the specific facts of the case.
Overview of the Likely Timeline
It typically takes at least a couple of years for a foreign worker to obtain a green card. However, as highlighted below, in most cases the foreign worker does not have to wait for the green card before reporting for duty. Immigration law provides many temporary work visas that foreign workers may use during the entire wait for the green card.
The usual green card process involves three steps:
- Successful completion of the permanent labor certification on behalf of the foreign worker (referred to as the PERM process). This can take anywhere from six months to several years to complete.
- Obtaining approval of the I-140 visa petition on behalf of the foreign worker. This step takes an average of approximately four months to complete, but an expediting procedure is available that reduces this to 15 business days.
- Obtaining the foreign worker’s green card through approval of the I-485 application (assuming the worker is already in the U.S. on a temporary visa; if not, he or she would be applying through a U.S. consulate, using different forms). This step takes an average of approximately six months as well, and unfortunately there is no expediting process yet available.
How Long the PERM Process Will Likely Take
PERM requires U.S. employers to place multiple advertisements for the foreign worker’s prospective job position, and certify to the Department of Labor (DOL) that no willing and qualified U.S. workers were available to take the job. The PERM process itself is lengthy and involved (for additional articles on PERM, please see "Employers: Sponsoring Immigrants for Work Visas or Green Cards."). The following is an overview of the PERM steps and the general time frames for each.
First, the employer must define the duties and requirements of the foreign worker’s prospective position. Although this may sound easy, it can take a few weeks to truly finalize the duties and requirements, as these details play a critical role in the overall immigration strategy. (Due to the complexity of the PERM process, it is very highly recommended that employers consult skilled immigration attorneys.)
Second, after finalizing the job duties and requirements, the employer must submit a prevailing wage request to the DOL. This is submitted electronically via the DOL website at http://icert.doleta.gov/. The prevailing wage request provides the DOL with information on the job opportunity such as the requirements, duties, and worksite location(s).
The purpose is for the DOL to give the employer a prevailing wage determination (PWD) for the job position. As with all employer-sponsored visas, the employer must pay the foreign worker at least the prevailing wage for the position. It usually takes the DOL approximately five to seven weeks to issue a wage, although this timeframe can vary.
An employer may disagree with the wage the DOL provides, and ask the DOL for a redetermination. Or, the employer can edit the job duties/requirements and ask for an entirely new wage. In either event, this extra step can delay processing, because the DOL may take several days or a few weeks to reply.
After the employer receives an acceptable PWD, the employer can begin recruitment for the position. This consists of placing multiple advertisements and interviewing potential candidates (for detailed information on this, see "Employer Recruitment Responsibilities Under PERM").
As part of the recruitment, the employer must post a job order with the state workforce agency. This job order must run for 30 days. During this same time period, the employer runs the other ads, which have to include two Sunday newspaper ads and three other types of advertisements.
While the employer is not required to run the ads at the same time, it is usually recommended to do so. This recommendation is because there is a mandatory 30-day waiting period that starts after the last ad expires. The PERM application cannot be filed until this 30-day waiting period is over. Also, none of the ads may be older than 180 days at the time of filing the PERM application. Due to these requirements, it is usually easier to run the ads at the same time to ensure that none of them expire before the PERM can be filed.
Once the ads are placed and the 30-day waiting period expires, the employer can submit the PERM application. The PERM application is made on the ETA Form 9089 and is submitted to the DOL electronically. On the DOL website shown above, the DOL provides guidance for how long it takes to process a PERM application. As of early 2013, the DOL was taking approximately four months to review and adjudicate PERMs. (This could change at any time; the DOL provides this information as a courtesy and is not required by law to abide by any time frame.
If the DOL approves the PERM, the employer can move on to step 2, the I-140 petition. In the event that the DOL audits (asks for additional evidence) or denies a PERM, the process will likely be delayed by several months to several years. The PERM application must be complete and approved before the employer can move on to the I-140 petition.
How Long the I-140 Petition Process Will Likely Take
As soon as the DOL approves the PERM, the employer can file an I-140 visa petition with U.S. Citizenship and Immigration Services (USICS). This petition must includes the original approved PERM application (which the employer and the foreign worker must sign), evidence of the employer’s ability to pay the foreign worker’s salary, and documents confirming that the foreign worker is qualified for the position such as a copy of the worker’s educational degrees. (Note that a PERM is only valid for a certain period of time and the I-140 must be filed within this validity period or the PERM will expire and the employer must start over again).
Just like the DOL, the USCIS posts time frames to let the public know about how long it usually takes to adjudicate an I-140 petition. As of early 2013, USCIS was taking between four and seven months to make I-140 decisions. However, history has shown that it can take USCIS much longer to adjudicate petitions.
Notably, there is an expediting option available for I-140s. The employer can pay an extra fee and request premium processing, meaning USCIS will adjudicate the I-140 within 15 business days.
How Long the I-485 (Green Card Application) Process Will Likely Take
Once USCIS approves the I-140 visa petition and the foreign worker’s priority date has become current (applicable in cases where annual demand for the type of green card exceeds supply), the worker can file the I-485 (green card) application) to USCIS. This is the only part of the process that requires the worker to file an application on his or her own behalf; the employer cannot file the I-485 for the worker. (Again, we're assuming that the worker is already in the U.S. on a temporary visa, as is common in most cases, If not, the approval of the I-140 will trigger the National Visa Center to send the file to the appropriate U.S. consulate for further processing.)
The USCIS’s posted time frame for adjudicating I-485 applications is seven months as of mid-2012. However, adjudication of I-485s depends on whether the applicant’s priority date is current. Therefore, if priority dates retrogress (move backward), then USCIS will hold the application until the priority date becomes current again. Due to the priority date backlog for nationals of India, China, Mexico, and the Philippines, these foreign workers often have to wait several years for USCIS to adjudicate their petitions.
Along with the above time frames, it is important to consider the costs of employer sponsorship. Immigration law mandates that the employer pay ALL of the costs associated with the PERM process (including the costs of advertisements and any legal fees). Violating this law can cause serious consequences for the employer.
Additionally, although it may take years for the foreign worker to obtain the actual green card, in most circumstances the foreign national is able to work for the employer during this entire process. There are multiple temporary work visas that are available that allow employers to hire foreign works, such as the H-1B visa and O-1 visa. For further discussion on these and other temporary work visas, please see our articles under "Employers: Sponsoring Immigrants for Work Visas or Green Cards."