Green Cards : Improvements in Processing and Strategies
Posted Dec 01, 2006
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From one case to another, there is a remarkable difference in how long it may take to obtain an employment-based green card. At the Murthy Law Firm, some of our clients recently completed the employment-based (EB) green card process, taking less than a year. Of course, these are individuals who are in EB2 and were not born in India or mainland China. They also did not experience security clearance delays, which can impact persons from all countries and in all EB categories. It should be noted that some of these people may have started green card cases years ago, waited like so many others for the pre-PERM labor certification process, and then re-filed under PERM. So, while the green card they received may have gone quickly from start to finish, their initial efforts to obtain the green card may have begun much earlier and been a long and frustrating process as with many others.
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Possible Expedite Requires Cooperation
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Timing of the green card process can be a painful subject for many, including numerous MurthyDotCom and MurthyBulletin readers, many of whom have been waiting for years to complete the green card (GC) process. There were problems with the U.S. Department of Labor (DOL) backlogs, as well as USCIS backlogs. Many have been waiting 2-5 years just to complete the labor certification (LC) process. Many, particularly those in EB3, are experiencing years of anticipated delays due to retrogression, even just to file the I-485 papers. Mindful of, and sympathetic to, these problems, the Murthy Law Firm in no way is ignoring their seriousness. This report on the new, faster processing procedures is to inform those who might benefit. Cooperation between the employer and the employee is required in terms of time, effort, filing, and the costs involved. There are strategies even for those experiencing retrogression, which take advantage of the faster processing times for PERM and I-140 premium processing.
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LC to GC Approval in Record Time
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Our firm recently has had some green card cases that completed the entire process in less than a year. These clients benefited from the faster PERM processing at the labor certification stage, utilized premium processing for their I-140 petitions, and then gained from USCIS backlog reduction / faster processing times on the I-485s. For example, using these strategies, an employer could start the green card process on January 1st. Complying with PERM recruitment requirements and properly preparing the case generally take about four months. Thus, the case could be filed on about May 1st. If all goes well, the labor certification case could be approved within two months or less. Some PERM approvals have reached our office within a few days of filing. On the other hand, some cases have taken more than six months for a decision.
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If the labor certification takes two months, the approval could be in hand by July 1st. If the case is not subject to retrogression, the I-140/I-485 could be filed concurrently. Using premium processing for the I-140 (at an additional premium fee to the USCIS of $1000), there could be an approval within as few as 15 days. Allowing some time for a Request for Evidence (RFE) or other delay, the approval could be received by August 1st. At this point, the I-485 is pending, simply awaiting a decision. Our firm is seeing fairly fast I-485 processing times for those cases that are eligible and do not run into problems with background checks. Thus, such a case could very well conclude with an approval before the end of December - less than one year from filing.
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Faster Processing is Not Guaranteed
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Such record times are the exception, not the rule. This type of success requires that each part of the case goes through without any problem. Many cases encounter difficulties at some of the stages, however, even if they are resolvable. It also requires that the visa numbers be available in the category and that they remain available until approval. While EB2 is available for all countries of chargeability, except India and mainland China, this is subject to change. One absolutely should not depend upon everything running smoothly and falling into place with ease. Neither should one wait until the very end of her/his H1B status to begin the green card process.
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Consider Re-Filing : Non-Retrogressed Countries
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The possibility of rapid processing times may make it worthwhile for individuals with cases in the DOL backlog centers to re-file in EB2 under PERM, if they are from countries not experiencing EB2 retrogression.
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For example, if one is not from a retrogressed country, and has a case in the DOL backlog processing center, s/he could simply wait for the result. Alternatively, if the employer is willing, and if the case can qualify under EB2, one could consider re-filing entirely. While this requires an additional expenditure, both of money and effort, it may result in a green card approval within the time otherwise that would be spent simply awaiting a decision on the labor certification. If such a person were to re-file, s/he might be able to get the new case through the entire green card process within these more rapid timeframes.
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Consider Re-Filing : Retrogressed Countries
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It may be worthwhile for those from India and mainland China with EB3 cases at the I-140 stage to consider re-filing. This is only a benefit if the new case can be filed in EB2. At the Murthy Law Firm, we find that many of our clients have gained additional experience and promotions while waiting for their green card cases to process. Thus, they may be able to file under EB2, even if they earlier were more suited to EB3. The strategy would be to re-file the case in EB2 and request retention of the priority date from the previously-approved EB3 I-140. It is possible to request retention of the priority date from an approved I-140 when filing a later I-140 petition. (The EB categories do not have to match in the two I-140 petitions.) Using this strategy, one from India or mainland China could potentially end up with an EB2 case, still maintaining an older, current (or close to current) priority date in EB2. Once the priority becomes available, the case would be able to move forward to the I-485 stage. Since the PERM and I-140 processes are much faster than in the past, the possibility of re-filing to try to use such a strategy becomes more attractive and realistic.