How Long Will it Take to Get a Green Card?
Posted Aug 26, 2005
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Immigration attorneys often hear this question. One who is asking usually thinks it is just a simple question. The trusted, experienced attorney should know such a simple thing, right? But, it is not so simple. In this article, we at The Law Office of Sheela Murthy will try and explain the timeframes for employment-based (EB) immigration processing for the benefit of MurthyDotCom and MurthyBulletin readers.
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In EB green card cases there are and have always been many unknown factors that impact processing times. The times can range by years from one case to the next. Procedures can change in mid-stream, disrupting plans and strategies. Some of the factors impacting processing times for an employment-based green card requiring a labor certification are addressed here.
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Labor Certification - PERM
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It has been necessary for all labor certifications to be filed under the PERM process since March 28, 2005. These are generally processed much more rapidly than under the prior labor certification system. Under PERM, all cases must be pre-advertised. There is a 30-day "quiet period" following the completion of recruitment efforts. The case can only be filed after the 30 days. Thus, the time required for preparation of a PERM case is a combination of this quiet period, a 30-day State Workforce Agency (SWA) job order requirement, a number of recruitment requirements, a job posting, and the need to obtain a prevailing wage determination. Of course, all of the time necessary for the preparation and review of a case, and communication between the lawyer and the employer and/or employee, must also be considered. Therefore, depending upon how quickly the prevailing wage determination is issued, whether the employer has engaged in any recruitment efforts prior to the start of the PERM case, and how quickly the employer or employee provides information and documentation, it could take as long as four to five months for the PERM case to be ready for filing. Once it is filed, the U.S. Department of Labor (DOL) estimates processing times of up to 60 days. So, if all goes well, there may be an approved labor certification within about a six-month timeframe from the start of the process. If there is an audit by the DOL, there would be a delay. The time necessary for the additional processing of the PERM application is unknown, as the DOL has not indicated how long they will take to deal with audit responses.
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Labor Certification - BPC
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There are many labor certifications that were filed under the pre-PERM system. People with these cases are asking "how much longer?" Under the old system, labor certifications could take anywhere from a few months to four years or longer. At The Law Office of Sheela Murthy, we recently have been receiving approvals from the BPCs. Information on our latest approvals can be found in our August 19, 2005 MurthyBulletin article, BPCs Continue Approving Cases: August 5-12, 2005, available on MurthyDotCom. We continue to monitor our case approval dates and will update MurthyDotCom and MurthyBulletin readers periodically.
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After Labor Approval - I-140 Petition
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Following the labor certification approval, the case moves to the I-140/I-485 stage (it would also be possible to select consular processing instead of I-485). This is where the time estimate become quite uncertain. First, there is the I-140 petition. The time it takes to prepare this for filing can depend upon the availability of documents and the speed of action by the employer, employee, and attorney. I-140s have to be supported by the employer's financial data and proof that the employee / beneficiary has the required education and work experience. The safer and faster route is to try and gather all or most of this type of documentation in advance, soon after filing the LC. It may be necessary, however, to obtain updated financial information that could slow the preparation time. There are no advertising or other legal requirements of that nature that slow the preparation and filing of the I-140 petition.
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The I-140 petitions are filed with the USCIS service centers. A general estimate of the expected processing time can be obtained based upon the Service Center Processing Times Reports, available on MurthyDotCom. The processing time for any particular case can vary, depending upon the Service Center, whether there is an RFE issued, and general variations from case to case. At the present time, the Vermont, Texas, and California Service Centers are moving fairly quickly on I-140 petitions. Their reported processing dates reflect processing times of between three to five months. The Nebraska Service Center is significantly slower, with reported processing times of a full year to a year and a half, depending upon category. Our regular MurthyDotCom and MurthyBulletin readers know that it is not necessary to have an I-140 approval to file the I-485. This is where the real uncertainty comes about with processing times.
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Adjustment of Status - I-485 Application
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Once the labor certification is approved, the general procedures allow for concurrent filing of the I-140 and I-485 only if the priority date is current for that person. The I-485 can take some time to prepare, depending upon how much work was done in advance. It is necessary to have a medical exam. It sometimes takes a while to get a doctor's appointment and the test results. It is also necessary to document immigration status history, provide birth and marriage records, and biographical information. Those who are more organized about their documents and have less complicated histories will have an easier time providing what is needed. If documents are needed from abroad, it is best to work on this well in advance.
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It is not always possible to file the I-485 with the I-140 because of unavailability of visa numbers, and this can be a problem. See our December 24, 2004 article on this topic, Retrogression Clarification : Concurrent Filing Possible for Some, available on MurthyDotCom. Essentially, in order to file an I-485, there must be an available visa number in the particular category. This concept of visa unavailability, retrogression, and visa cutoff dates is vital to the understanding of the immigration process at this time. [For more information on this topic, see our August 11, 2005 NewsFlash, EB2 Numbers Available in September - Uncertain Future, and our September 24, 2004 article, Priority Dates May Retrogress, both available on MurthyDotCom.]
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Possible Delays in Filing Due to Retrogression
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So, a person may have an approved labor certification, but not be able to move forward to the I-485 stage. This problem is even more severe for people from the traditionally oversubscribed countries like India, mainland China, and the Philippines. Following labor certification approval, the employer can file the I-140 petition and even obtain its approval without regard to visa number availability. The case will stall at that point, however, until visa numbers are available for the individual's employment-based category so that the I-485 can be filed. This delay could be a few weeks, a few months, or more than a year. This is why it is virtually impossible to answer the question, "How long will it take to get a green card?"
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Possible Delays in Adjudication Due to Retrogression
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If a visa number is available and a case is filed, it is still not immune to retrogression delays. For an I-485 to be approved, there must be a visa number available on the date of the I-485 approval. Thus, if a case is filed while visa numbers are available, and then the visa numbers retrogress while it is pending, the case will have to wait until the visa numbers become current again. The time delay, again, is an unknown factor.
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Consular Processing
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If a person elects consular processing, instead of adjustment of status, the analysis is similar. In that event, the I-140 is filed after the labor certification approval. It is then necessary to wait for the I-140 approval to move forward. The processing time ultimately depends upon how quickly the case moves through to an appointment at the particular consulate. This is generally a number of months, perhaps between four to eight months. A case cannot be approved at the consulate for an immigrant visa, however, unless there is a visa number available. Therefore, consular cases are also delayed by retrogression.
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Other Variations
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There are numerous other matters that can cause variations in processing times. Security checks are one of the most obvious, with lengthy delays possible while clearances are obtained. Receipt of requests for evidence, or RFEs, can slow the processing times. Putting aside retrogression issues, enormous variations in processing times are evident at the various service centers and local USCIS offices. While most employment-based green card cases for professionals are ruled upon at the USCIS service centers, some are sent to the local USCIS offices for interview. This can cause additional months of delay. The USCIS is making efforts to speed case adjudication, and we have seen results of this in some cases. As reported in several articles, however, processing times are quite erratic within service centers. [See our July 8, 2005 MurthyBulletin article, Some Fast I-485 Approvals, available on MurthyDotCom.]
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Conclusion
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So, the simple question regarding how long the green card case will take is not so simple after all! We at The Law Office of Sheela Murthy urge MurthyDotCom and MurthyBulletin readers to continue to educate themselves on the immigration process, to better understand what is going on with their cases and, in many instances, what is taking so long.