In his foundational text the Tao Te Ching from the 4th Century BCE, Chinese philosopher Laozi pronounced that “The Journey of a Thousand Miles Begins With a Single Step.” Laozi could have never imagined how relevant this quote would be to the U.S. immigration system in the 21st century, but, unfortunately, it reminds us of the struggle that some of those applying for an employment-based green card through the PERM process may face. Although the PERM process is not quite as long as the journey Laozi describes, processing times are constantly changing – and lately, often lengthening. To combat this and retain critical talent in the United States, it is crucial that employers start the process sooner rather than later, as each journey begins with that first, singular step.
Applying for permanent residency (a Green Card) through employment is a wonderful way for employers to retain their foreign talent in the United States. For the vast majority of workers, there are three major steps: the PERM Labor Certification, the Immigrant Petition (Form I-140), and the Application for Permanent Residency. One may apply for permanent residency abroad (at a U.S. Embassy or Consulate, i.e. “Consular Processing”), or by filing the Form I-485 to adjust their status while inside the United States. Critically, the worker needs an independent basis such as a work visa to remain in the United States through the PERM and the Form I-140 stages. It is only when the Form I-485 is filed while inside the United States that the worker may lawfully remain because they have a pending residency application.
The first step, the PERM process, has two significant substeps: (1) filing the Prevailing Wage Determination (PWD; Form 9141) with the U.S. Department of Labor, and (2) and filing the Labor Certification (PERM; Form 9089) with the same agency. The PWD sets the minimum wage that the employer must pay a foreign worker for a specific job based on multiple factors, including the job duties, requirements, and geographic location. The PERM tests the labor market to determine whether there are any U.S. workers willing, qualified, and able to perform the job. PWD processing times are holding steady at about 5-7 months, while PERM processing times are taking 11-14 months, and continuing to lengthen. Employers with workers on H-1B visas who file the PERM before the fifth year of their employee’s anniversary of their H-1B status can take advantage of the uncommonly-used Section 106(a) to extend their worker’s H-1B beyond the sixth year. However, those with employees on other time-capped visas – such as the L-1A and L-1B – cannot use a pending PERM to extend their employees’ temporary work visas in the U.S.
Next is the Immigrant Petition stage, which is done through the filing of Form I-140, and requires the employer to prove that the foreign worker is willing, qualified, and able to perform the job. This step is the only part of the permanent residency process that may be expedited through the government’s Premium Processing service. Although the cost is steep – presently $2,805 per application – the processing time reduces from a couple of months to fifteen business days. For those employers with workers on a H-1B visa, having an approved Form I-140 may give the worker the ability to extend beyond the sixth year, if the worker is not otherwise eligible to file their Form I-485 or an application for a green card through Consular Processing. However, no other visa may extend beyond its authorized limit based upon an approved Form I-140.
At the end of the road, the foreign national is eligible to apply through a U.S. Embassy or Consulate or file the Form I-485 for themselves and any qualifying dependent family members. Having a pending Form I-485 comes not only with the ability to remain in the United States, but independent work and travel authorization for the worker and their dependent family members. Amongst other benefits, once the right applications are approved, spouses previously unauthorized to work may now take on any job or jobs which they are otherwise qualified to accept and minor children may now apply for Social Security Numbers. This part of the process can generally take up to a year.
However, before the foreign national can even apply through a U.S. Embassy or Consulate or file the Form I-485, there must first be a visa available for them. This ultimately depends on the employment-based category under which they are applying, coupled with their country of chargeability. Previously, only Indian and Chinese-born workers were subject to long wait times, occasionally joined by their neighbors from the Philippines. Since 1990, however, Congress has only authorized 140,000 Green Cards per fiscal year to be issued to workers and their dependent family members through the employment-based green card process. Due to exceptionally high demand and Congress’ failure to increase the allocation to support a modern labor force, most categories now have a wait time, regardless of the applicant’s country of birth. To check if a visa is available for a given applicant, you can refer to the Department of State’s Visa Bulletin to determine whether your Priority Date is current. Given the backlog of available visas, it may take multiple years for someone’s Priority Date to become current – meaning, they will not even be able to apply for a green card for quite some time.
Once all of these steps have been completed and the foreign national receives their physical green card, then they have officially been admitted to the United States as Lawful Permanent Residents. At that point, they will have certain rights and responsibilities and should start looking to the future for when they may be able to file for U.S. citizenship.
Wildes & Weinberg P.C., perhaps the United States’ premier law firm concentrating in the immigration and nationality field, was established by Leon Wildes, in 1960, who is best known for his successful representation of John Lennon in his deportation proceedings. Leon’s son, Michael Wildes, is now the firm’s Managing Partner and a Former Federal Prosecutor, as well as the Mayor of Englewood, New Jersey. His representation has included soccer icon Pelé, supermodel Gisele Bündchen, renowned chef Jean-Georges Vongerichten, singer-songwriter Boy George, and many more. The firm treats all their clients with the same respect and fights for their rights with tenacity, scholarship, and experience, whether international celebrities or next-door neighbors.
Over the past 60 years, the firm has concentrated their practice in all aspects of U.S. immigration and nationality law, servicing the immigration needs of prominent American and International firms, banks, industrial, financial, and manufacturing concerns and law firms in connection with the personnel needs of their foreign national employees, including massive corporations with thousands of employees. In addition, they have a distinguished clientele and have done substantial immigration work for performing artists, influencers, directors, writers, models, actors, athletes, esports professionals, fine artists, art dealers, curators, streamers, literary agents, and more.
Despite difficulties currently being encountered in dealing with U.S. immigration authorities, we have maintained an extraordinary track record for success in our cases. In addition, our entire staff is known for its experience and special expertise in processing each foreign national’s case with nothing less than the highest level of professionalism. Although we are based out of New York City, we also have offices throughout the country and world, and together with our multilingual staff, we represent clients all over the globe.
For more information about the green card process or any other type of visa or immigration inquiry, please visit www.wildeslaw.com or contact michael@wildeslaw.com.
By Nora Anderson and Josh Wildes, Associate Attorneys at Wildes & Weinberg, P.C.