Are We There Yet? Green Card Processing Updates

The road to a green card is often measured in years rather than months. This has become particularly true for many employment-based green card cases. As discussed in the August 2008 issue of the Immigration eAuthority, in 2004 the U.S. Department of Labor (DOL) projected that permanent labor certifications filed using the new Program for Electronic Review Management system (PERM) would take 45 to 60 days to process, unless the case was subject to an audit. Rarely in the history of PERM have those timeframes been met. The DOL recently provided information indicating the current processing dates for PERM as: July 2008 for “No Audit” cases; September 2007 for audited cases; and June 2007 for cases on appeal. Thus, even in the best of cases processing can reasonably be expected to take nine months, and the PERM process is only the first step in a three-step process for most employer-sponsored green cards. Note that the DOL is converting to a new iCERT Visa Portal System for processing PERM cases on September 1, 2009. The Labor Condition Application (LCA) portion of the system went live on April 15 for employers of H-1B, H-1B1, and E-3 workers) and one can only wait to see what impact, if any, the change will have on processing times.

Following approval of the PERM labor certification, the employer must file an “Immigrant Petition for an Alien Worker” with the U.S. Citizenship and Immigration Services (USCIS), Form I-140. The Nebraska Service Center of USCIS indicates that many I-140 cases are processed in four months to one year or more. 

Then, one must proceed to the final step of the green card process, typically by filing Form I-485 “Application to Register Permanent Residence or Adjust Status.” The applicant’s “priority date” (typically the date of filing the PERM or the I-140 filing date for cases exempt from labor certification) must be “current” for the I-485 to be filed and for the I-485 to be approved. The priority date system is used to manage one’s place in line for the green card, as green cards in employment-based categories are subject to annual numerical limitations. For several years, the demand for green cards has far exceeded the allocation and a backlog has developed. The Department of State (DOS) issues a monthly Visa Bulletin to advise applicants of the processing priority dates in various green card categories. For much of 2009, priority dates have gone backwards, or “retrogressed,” as DOS attempts to process the correct number of green cards as allocated by law. In fact, the May 2009 Visa Bulletin shows that the entire 2009 allocation for the third employment-based green card category (for professionals and skilled workers, also known as EB-3) has been exhausted. Thus, the category is shown as “unavailable” and will likely remain so until next year’s green card allocation becomes available on October 1.

Absent some change in law, possibly as part of a comprehensive immigration reform bill, permanent residence applicants will need to remain patient as they await what can commonly be a lengthy green card process.

Note: This article was published in the April 2009 issue of the Immigration eAuthority.