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 steps on behalf of any particular worker before that person can obtain a U.S. residence (a green card). Each step 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:
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 U.S. government's processing and in your accomplishing the various required tasks, depending upon the facts of the situation.
It typically takes at least a couple of years for a foreign worker to obtain a U.S. green card through an employer. The usual process involves three steps:
All of these steps are detailed below. Fortunately, as also discussed below, there are various temporary visas available that could allow the foreign worker to accept employment with your company during the years of waiting.
Most (but not all) foreign workers must go through the PERM labor certification process before they can apply for a green card. The PERM process itself is lengthy and involved. (See more on Employers: Sponsoring Immigrants for Work Visas or Green Cards.) From the employer's standpoint, the goal is to prove to the U.S. Department of Labor (DOL) that no willing and qualified U.S. workers are available to take the job.
First, the employer must define the duties and requirements of the foreign worker's prospective position. Although this might sound easy, it often takes a few weeks to complete, as these details play a critical role in the overall immigration strategy. (Due to the complexity of the PERM process, it is highly recommended that employers consult a skilled immigration attorney.)
Second, after finalizing the job duties and requirements, the employer usually submits a prevailing wage request to the DOL. (It is also possible for the employer to use private surveys to determine the prevailing wage for the job.) The prevailing wage request is submitted online via the DOL Foreign Labor Application Gateway (FLAG) portal. It provides information on the job opportunity, such as the requirements, duties, and worksite location(s).
The DOL will then 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. It usually takes the DOL approximately 60-90 days (as of early 2023) to issue the wage, although this time frame 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 a different wage. In either event, such extra steps create delays, because the DOL might take several days or a few weeks to reply.
After receiving an acceptable PWD, the employer can begin recruiting for the position. This consists of placing multiple advertisements and interviewing potential candidates. (For details, 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 typically 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, doing so is usually a good idea. This 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's usually easier to run the ads at the same time to ensure that none of them expire before the PERM labor certification application can be filed.
If the DOL approves the PERM, the employer can move on to step 2, the I-140 petition (described next). 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.
As soon as the DOL approves the PERM, the employer can file an I-140 petition with U.S. Citizenship and Immigration Services (USICS). This petition must include 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, USCIS posts time frames to let the public know approximately how long it usually takes to adjudicate an I-140 petition. As of early 2023, USCIS was typically taking a year or more to make I-140 decisions. Long waits like this are not uncommon, though the COVID-19 pandemic made it worse.
Notably, there is an expediting option available for I-140s. The employer can pay an extra fee and request premium processing, meaning USCIS will make a decision on the I-140 within 15 business days.
Once USCIS approves the I-140 petition and the application filing date corresponding to the foreign worker's priority date has become current according to the Department of State's most recently issued Visa Bulletin (applicable in cases where annual demand for the type of green card exceeds supply), the worker can fill out and submit the I-485 (green card application) to USCIS.
This is the only part of the process that requires workers to file an application on their 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, USCIS approval of the I-140 will trigger the National Visa Center to send the file to the appropriate U.S. consulate for further processing.)
USCIS's posted time frame for acting on I-485 applications as of early 2023 is several months, depending on green card category and the service center where the I-485 application is filed.
Also realize that USCIS approval of I-485s must wait until the applicant's priority date is current. Therefore, if priority dates retrogress (move backward, as they sometimes do), USCIS will hold the application until the priority date becomes current again. Due to the common priority date backlog for nationals of India, Mexico, the Philippines and China, these foreign workers often have to wait several years for USCIS to approve their petitions.
Along with the above time frames, it is important to consider the costs of employer sponsorship, which can easily run into the thousands of dollars. U.S. 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.
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 wait, ideally to work for the employer during this entire process, such as the H-1B visa and O-1 visa. For further discussion, see Employers: Sponsoring Immigrants for Work Visas or Green Cards.
Because of the complexity of evaluating a worker's eligibility for a green card and handling details of the recruitment and application process, most companies find it beneficial to hire an attorney to help. Larger companies might even have immigration attorneys on staff. But if that doesn't describe your business, don't worry, it's still possible to find excellent help with this task.