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Green Card EB2 and EB3: Professional or Skilled Worker

Three Step Green Card Process

For most applicants, the green card process will involve three separate steps.

Examples of Successful Cases:

Our office consistently receives PERM certifications, I-140 and green card approvals because we remain up to date on current policies, trends and requirements. 

Our success rate includes complex cases involving a combination of degrees, degree equivalents from education and experience, language requirements, licensing and professorial special handling. 

We prepare cases for small to large companies, public, nonprofit and private agencies.  

Successful cases are from a wide variety of industries including software development and engineering, graphic design and arts, education (elementary through university), restaurants, wineries, accounting, legal, social work, sciences and mental health counseling.

Step One: PERM Labor Certification Application

The  PERM labor certification application is the first step. The purpose is to determine if a qualified and willing U.S. worker is interested in the applicant's position. One nice aspect of this process is that an employer can sponsor an employee for his or her present position or a future position (if a promotion is anticipated) or for a prospective employee who is anywhere in the world, whom they would like to hire at a later date. The PERM application is filed with the U.S. Department of Labor.

Basic Steps Include:  

  • Prevailing wage: the employer files a request with the Department of Labor, outlining the position details. Within a few months, DOL will assign a required wage for the position. The employer must agree to pay the wage as soon as the green card is granted but must also be able to demonstrate the ability to pay the wage from PERM filing onwards. Once this wage is set, the employer can move forward with classified ads to test the labor pool.

  • Classified Ads: To test the labor market, the employer must advertise over a period of at least thirty days before filing the application and then wait an additional 30 days to vet any submitted resumes. This "good faith" recruitment must include two Sunday ads in the newspaper of highest circulation for that city; an internal posting; and a 30 day ad on the State's online job bank. Employers are then allowed to choose three alternative forms of recruitment from a list of ten options: commonly used options include web based private classifieds; employer's website; local newspaper and campus recruitment.

  • Resume Review and Filing: During and after the recruitment period, the employer reviews resumes from U.S. workers. If a person appears qualified on the face of the resume, the employer must contact the applicant for an interview to further determine eligibility. PERM resume review does not follow normal hiring practices. However there are several legitimate reasons to disqualify applicants, which include: he or she is not a U.S. worker; does not meet the minimum educational and experience requirements; cannot satisfactorily perform the job duties; or is not interested in the position. If after resume review and a controlled, good faith vetting process, a qualified and willing U.S. applicant is not located during the advertising period (and a 30 day wait time), the PERM application is then filed with the Department of Labor. 

Advantages to Filing the PERM Application:

The great advantage for all applicants regardless of visa category, is that they are on their way to obtaining a green card. However, the PERM filing provides an additional benefit to H-1B applicants and their U.S. employers. Normally a person can only retain H-1B status for six years and then must leave the United States for at least one year, before applying for H-1B status again. If the employer files the PERM application before the employee's last 365 days of H-1B status, the applicant will be eligible for yearly H-1B extensions even though they have used up the entire six years normally given. Because this benefit has a strict filing deadline and the PERM process takes many months to prepare and file, it is important to ensure sufficient time for PERM filing by the end of year five.

Step Two: I-140 Immigrant Petition

The I-140 petition is the second step in the employer based green card process. The sponsoring employer files an I-140 immigration petition with DHS within 180 days of PERM certification.

Basic Criteria Include:  

  • The employer verifies the ability to pay the applicant the assigned wage (from the date the PERM application is filed through green card approval)

  • The employee submits credible documentation verifying that he or she met all minimum job requirements for the sponsored PERM position before accepting employment in that position. This documentation generally includes diplomas and transcripts, detailed letters from prior employers, licenses/certificates and continuing education certificates.

It is important to prepare for the I-140 petition when preparing the PERM application (which is the first step of the green card process). Proper planning will have a significant, positive impact on how quickly an applicant can apply for a green card; significantly decrease the chance of an I-140 or green card denial; and ensure the applicant can remain working in the United States in the interim.

Advantages to Having an I-140 Approval: 

The great advantage for all applicants regardless of visa category, is that they are now closer than ever to obtaining a green card. However, an I-140 approval provides an additional to H-1B applicants and their U.S. employers. Normally a person can only retain H-1B status for six years and then must leave the United States for at least one year, before applying for H-1B status again. If the I-140 petition is approved before the sixth year expiration, the applicant will be eligible for three year H-1B extensions even though they have used up the entire six years normally given. This means the employer will save the attorney and government fees needed for employees who are only eligible for yearly H-1B extensions.

The approved I-140 has an added benefit for any employee. In the unlikely circumstance that the employee moves to a different employer, he or she can often "retain" their place in the wait line for their green card. The new employer generally needs to start the green card process again; however it often will not impact the timing of when the employee actually is permitted to file step three of the green card process.  

My I-140 is approved. Can I apply for my Green Card right away?

The answer is, "It depends." The government divides all applicants into five categories and then allows a certain number of people in each category to apply for a green card per year. The applicant's category is determined based on the education and experience required for the sponsored position. 

Wait times are also determined by the applicant's birth country, with India, Mexico, China and the Philippines having separate quotas that are generally longer than for other applicants. 

Some applicants are permitted to file their green card application simultaneously with the I-140 petition. Others will wait 1-10 years for the opportunity to file the third step.

Step Three: Adjustment of Status Application

Congratulations! Since the PERM and I-140 immigrant petition are approved, the applicant is now eligible to file the third and final step with DHS, the green card application. The technical term for this application is "adjustment of status". The employer does not have any responsibility at this stage, except to continue sponsorship. Instead the applicant is under scrutiny, signs all legal forms and produces a significant amount of documentary evidence. If approved, the applicant then obtains his or her green card. 

In some circumstances, the applicant is eligible to file the adjustment of status application simultaneously with the I-140 petition. 

Eligibility Requirements for the Adjustment of Status Application:

In order to obtain a green card, the applicant must demonstrate:

  • Maintenance of status while in the U.S. (i.e. never overstaying a visa or doing something to violate that visa)

  • That the sponsoring employer paid the correct wage as listed on the underlying non-immigrant visa

  • That he or she has: 

    •  not been employed without authorization 

    • filed all required state and federal taxes

    • not otherwise violated immigration or other laws of the United States

DHS reviews the applicant's entire immigration history carefully when adjudicating the green card application. Applicants interested in obtaining a green card should create a long-term strategy with their immigration attorney, that encompasses that person's entire stay in the United States. Careful planning will increase the alien's eligibility for a green card and help that person to avoid simple mistakes that can result in a denial.

Family Members:

The principal applicant's spouse and children under 21 are also able to file for green cards, travel permission and work authorization.

Employment Authorization When Green Card is Pending:

When filing for a green card, the applicant may apply for work authorization based on the pending green card application. 

International Travel When Green Card is Pending:

When filing for a green card, the applicant may apply for advance parole document, which allows re-entry to the U.S. after international travel. Most green card applicants may not leave the U.S. without this document or the underlying green card application is abandoned.  The exception to this rule is for H-1B and L-1 visa holders. 

Scheduling a Consultation: 

We understand how important a green card can be to a person’s stability, emotional and mental health; and to a company’s ability to plan confidently for the future.  When your  employee is someone you’d like to retain long term, or you’d like to approach your employer for sponsorship,  we can assist you in analyzing the situation, creating a short and long term strategy and supporting you through the entire green card process from inception to approval.