Essentially, there are three steps to the Employment Based Green Card Process for foreign applicants in the EB2 and EB3 preference categories. First and foremost, the foreign national must have a job offer with an employer who is willing and able to sponsor them throughout the green card process. Before going any further, the employer must test the U.S. labor market. In essence, the employer must determine if there are U.S. workers able, ready, willing, and qualified to work in the position offered to the foreign national. Testing the U.S. labor market involves obtaining a prevailing wage, posting a notice of filing, undertaking various recruitment efforts, and creating a detailed recruitment report among other things, all of these efforts must take place within a 180 day period.

After testing the U.S. market, and if no qualified U.S. workers are found, the employer may then prepare the PERM 9089 Application, the first step of the Green Card process. All of the recruitment efforts undertaken must be included in the PERM application, as well as information about the employer and foreign national. It is extremely important for employers to comply with all PERM regulations and guidelines. As such, we recommend that all employers maintain an Audit file for each PERM applicant, as many PERM cases are audited by the Department of Labor (“DOL”); it is easier to have evidence containing proof of recruitment efforts and foreign national qualifications in one organized file. Once the ETA 9089 application is prepared, it must be filed with the DOL at the appropriate processing center, either in Atlanta, GA or Chicago, IL depending upon the actual place of intended employment. As of June 2008, forty-four percent (44%) of PERM 9089 applications that were submitted to the DOL were being audited, accordingly, the pending period has increased from three (3) to six (6) months, to six (6) months to one (1) year, or more.  If an employer receives a denial on a PERM application, they have three choices: re-file immediately, file a motion to reconsider, or file an appeal; however, an employer may elect only one of those options. According to the American Immigration Lawyers Association (“AILA”), a motion to reconsider/appeal is currently taking approximately one year for a DOL response. Additionally, if a motion to reconsider is denied, an employer may choose to appeal the decision with the Board of Alien Labor Certification Appeals (“BALCA”).

Once the labor certification is approved, the next step in pursuit of a Green Card is the I-140 stage. At this stage, the employer must submit Form I-140, Immigrant Petition for Alien Worker along with the approved labor certification to the appropriate Government agency, the United States Citizenship and Immigration Services (“USCIS”). Essentially, the employer must prove to the USCIS that they are able, ready, and willing to sponsor the foreign national through employment by paying at least the prevailing wage indicated in the approved labor certification. The employer may prove this by submitting detailed financial reports evidencing their ability to sponsor the foreign applicant. Additionally, the employer must also submit documentation of the foreign applicant’s education and experience qualifications as evidence to show that the foreign applicant is qualified for the position indicated in the labor certification. 

After obtaining an I-140 approval, an applicant must be able to obtain an immigrant visa number before proceeding with the I-485 stage of the Green Card process.  In order for an individual to obtain an immigrant visa, a visa number must be available. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov.  To clarify, a foreign applicant may find their specific priority date on their approved labor certification, and once that date becomes current, a foreign applicant may proceed with the last stage in the Green Card process.

The next stage is the submission of Form I-485, Application to Register Permanent Resident or Adjust Status.  This is the final stage of the Green Card process. At this stage, the foreign applicant demonstrates to the USCIS that he/she is a law abiding applicant. The USCIS will conduct several different background checks on the foreign applicant with the information provided in the I-485 package. It is entirely up to the foreign applicant if they wish to apply for ancillary benefits, including Employment Authorization Document (“EAD”) and Advance Parole (“AP”) which will allow the foreign applicant to work and travel while their I-485 application is pending. If an applicant decides to apply for ancillary benefits, they will have to renew their EAD/AP documents annually until their I-485 application is approved.

A foreign applicant may choose to file through a consulate, referred to as Consular Visa Processing (“CVP”).  With this option, once a foreign applicant obtains an I-140 approval, the USCIS notifies the National Visa Center (“NVC”) and the NVC starts the process once a visa number is available. The NVC contacts the applicant regarding supporting documentation and filing fees, and would schedule a visa interview on behalf of the applicant. Once the applicant attends the interview, the visa is issued. The only benefit associated with CVP is timing. Depending on the country and consulate, the foreign applicant may have less of a wait if they elect CVP. There are several drawbacks to CVP.  Most importantly, this option costs more money than the I-485, Adjustment of Status (“AOS”) process. With CVP, spousal work authorization will not be offered nor granted, as it may be with AOS processing. Moreover, the AC 21 Portability rule does not apply to CVP, it only applies with AOS processing. Furthermore, if a foreign applicant elects CVP, they do so without access to counsel, due process, and the right to an appeal, which are readily available with I-485, AOS processing.