In most cases, there are 3 steps to the employment-based green card process. The first step is filing the PERM labor certification application with the Department of Labor (DOL). By submitting the PERM labor certification application, the employer is certifying that the U.S. labor market has been tested through good faith recruitment and through these efforts the employer was unable to find “able, willing, qualified, and available” U.S. workers for the offered permanent position. After the PERM labor certification application is approved, the I-140 Immigrant Petition is submitted to the U.S. Citizenship and Immigration Services (USCIS). This is a preliminary petition that establishes which employment-based category the beneficiary will be assigned to. Finally, the third step is the I-485 Application to Register Permanent Residence or Adjust Status, which is filed with the USCIS and is the actual green card application. We can only move forward with this last step of the process if the beneficiary’s priority date is current, meaning a green card is immediately available to the beneficiary.

The date the PERM labor certification application is filed establishes the beneficiary’s priority date. The priority date determines the beneficiary’s place in line in the green card queue. To provide context, the Visa Bulletin reveals a lengthy queue comprised of individuals born in India seeking the second or third employment-based preference categories (EB-2 or EB-3). Unfortunately these individuals will wait many years before a green card is immediately available to them. For example, an individual whose country of birth is India and has a priority date that is earlier than April 15, 2012 in the EB-2 preference category can finally apply for a green card.

It is especially important for H-1B visa holders to begin the employment-based green card process as soon as possible. H-1B visa holders are limited to 6 years in H-1B status. However, the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows H-1B visa holders to extend their H-1B status beyond 6 years under certain conditions.  For example, a beneficiary can obtain a 1-year extension if the PERM labor certification application is filed at least 365 days prior to the day he/she reaches his/her 6-year limit on H-1B. In addition, a beneficiary can obtain 3-year extensions if he/she has an approved I-140 petition but his/her priority date is not yet current. The beneficiary can continue to apply for these 3-year extensions until his/her priority date becomes current. Thus, under AC21, H-1B visa holders who are stuck in a long line in the green card queue can continue to stay in the U.S. beyond 6 years. It is also important to begin the employment-based green card process as soon as possible as the DOL processing times have increased over the last couple of years. Based on current processing times, it could take almost 2 years to complete the PERM labor certification process from start to finish.

In order to file a PERM labor certification application, the employer must first obtain a Prevailing Wage Determination (PWD) and test the U.S. labor market through various recruitment methods for able, willing, qualified, and available U.S. workers. The DOL reported that as of March 31, 2024, the National Prevailing Wage Center (NPWC) is issuing wage determinations for PWD applications filed in October 2023 or earlier. This suggests a wait of approximately 6.5 months, although our office has been seeing a wait closer to 5.5 months. The DOL also reported that as of March 31, 2024, it is processing PERM labor certification applications filed in March 2023 or earlier. This suggests a wait exceeding 13 months, a trend that aligns consistently with our office’s observations. In the month of March 2024, it took the DOL an average of 397 calendar days to process PERM labor certification applications (slightly over 13 months).

Further, as of March 31, 2024, the DOL is processing audits for PERM labor certification applications filed in December 2022 or earlier. In the month of March 2024, it took the DOL an average of 477 calendar days to process audited cases. In other words, if an audit is issued on a PERM labor certification application, then slightly over 2.5 months are added to the total processing time of that PERM labor certification application. With PERM processing times increasing over the last couple of years, our office has seen more cases where H-1B visa holders cannot secure an approved PERM labor certification and I-140 petition prior to reaching their 6-year limit. As they approach their 6-year limit, these individuals must explore other options while the PERM labor certification and I-140 petition are pending, such as filing a change of status to a different nonimmigrant visa status or departing the U.S. and waiting abroad for the PERM labor certification and I-140 petition to be approved.

In conclusion, initiating the employment-based green card process at the earliest opportunity is strongly advised to secure the beneficiary’s place in line in the green card queue, particularly if his/her country of birth is one with a backlog. For those holding nonimmigrant visas like the H-1B, obtaining an approved PERM labor certification and I-140 petition before reaching the 6-year limit is crucial. This strategy enables H-1B visa holders to extend their status beyond the initial 6-year period.

Reddy Neumann Brown PC has been serving our clients for over 25 years. Our team is dedicated to helping our clients navigate the U.S. business immigration system by offering prompt, practical, and professional advice. Because the U.S. business immigration system can be tricky, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.

By: Camille Joson

Camille Joson is a Senior Associate Attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department, where she assists clients in the beginning stages of the employment-based green card process. Camille guides clients through the PERM Labor Certification process from start to finish and has handled hundreds of PERM applications throughout her career.