Step 1: Formulate job duties and minimum requirements
When Curran, Berger & Kludt prepares your petition, the first step in the process is series of correspondence between the attorney, employer, and employee to establish the crucial details of the job for which the employee is being sponsored. This includes job title, job duties, minimum education and experience requirements, job location, number of employees being supervised, and other important details. The employer must articulate the job requirements based on DOL regulations and realistic business practices. The employee must be able to show that she possessed the job requirements when accepting the offer. It is critical that previous experience and education be properly documented. Changes in the job duties, minimum requirements or location later down the road could require beginning the process anew.
Timing of this step varies greatly depending on how quickly we are able to get all the necessary information from all the parties involved. We typically set up a conference call with all parties 30 days after the start of the case, in order to refine certain details and review the next steps in the process. Overall, this step can take 2-4 months.
Step 2: Request prevailing wage determination (PWD) from DOL
Once the job details have been established, we submit an online PWD request to the Department of Labor. DOL will determine the prevailing wage for the position in the specified geographic location, based on the job duties, minimum requirements, and other details. If the wage for the position is governed by a collective bargaining agreement, documentation is submitted to DOL to show this.
PWD sets the minimum wage that the employer must be willing to pay the employee, at the time that the employee becomes a legal permanent resident. Currently, DOL issues a prevailing wage determination in 5-6 months (up to 9 months for union positions).
Step 3: Conduct recruitment
After receiving the prevailing wage determination, the advertisements will be placed to test the labor market. This labor market test for PERM purposes must be conducted in conformity with DOL rules. The recruitment stage takes a minimum of 2 months.
If an able, willing and qualified US worker applies for the position, we will need to stop the process, wait at least 6 months, and then re-test the labor market, perhaps with modified criteria.
Step 4: Submit PERM to DOL
When the recruitment period ends with no able willing and qualified US workers, we will prepare and file the (9089) PERM application and file it with DOL. PERM processing is currently taking about 5-6 months, but could take significantly longer if the case is audited. A chance of the case being audited is small: nationally the audit rate is about 25%, but with CBK the rate is less than 5%.
Based on the above, it is reasonable to expect the Labor Certification stage (steps 1-4) to take approximately 12 months or more if there is an audit.
Step 5: File I-140
This step involves a petition to USCIS to classify the applicant as an Immigrant Worker. Employer needs to show that the company can pay the employee the prevailing wage. The employee must show that she has all of the qualifications for the job. This petition must be submitted with the Labor Certification approval notice, which is only valid for 180 days. We usually begin preparation of I-140 petition in advance to have it ready to file as soon as PERM is certified.
I-140 processing is currently taking about 6-8 months. USCIS “premium processing” is available to reduce the initial processing time to about 2 weeks.
Step 6: Wait for priority date to become current
Depending on the green card category and the country of chargeability, immigrant visa number may not be immediately available. Please refer to visa bulleting https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html for the current information.
If priority date is current when the PERM is approved, we may be able to move to next step immediately and file the I-485 application together with the I-140.
If, after approval of the I-140 immigrant visa petition, priority date is not within 3 months of current on the most recent visa bulletin, we can offer monitoring services. Monitoring includes help to review visa eligibility in the appropriate category each month, monitoring legislation and regulatory developments at DOL and USCIS, gather basic information and documents to assess adjustment of status eligibility and being available to answer questions through the waiting period.
Step 7: File I-485
I-485 is a personal green card application filed by the employee named in I-140 petition and by her derivative family members (spouse and children). As long as priority date remains current, it can be filed after I-140 approval or at the same time as the I-140.
Adjustment of status application focuses on employee’s personal eligibility to receive green card (e.g. absence of criminal history or other grounds of inadmissibility). As a part of adjustment of status application, we can request a travel/work authorization card that can be used while I-485 is pending. The work and travel card usually arrives in 4-5 months after filing. At that point, an employee no longer needs her H-1B, though she may continue to use the H-1B until the green card is approved.
Step 8: Attend biometrics appointment
Applicant is likely to receive a biometrics appointment notice about 1-2 months after we file the paperwork. This will be in the USCIS office closest to your place of residence.
Step 9: Prepare for and attend interview with USCIS officer
About 12 months after filing the paperwork, we will receive an interview notice. Interview wait time varies greatly among different USCIS field offices.
At the I-485 interview, immigration officer will review employee’s green card application and all her underlying immigration file. At the time of the interview employee needs to confirm that job offer is still available for him, produce all the original civil documents, immigration status documents (H1B approvals, visa stamps, SEVIS documents) and previously completed medical exam on form I-693 in a closed envelope. We will prepare applicant for the interview and in might accompany her if this is necessary.
Green card usually approved from 2 week to 2 months after the interview. On rare occasions, when Visa Bulletin retrogresses, and visa number is no longer available, after the successful interview I-485 will be sent to National Benefits Center. In that scenario, USCIS will approve green card as soon as visa number becomes available again.
ANY TIMING PROVIDED ABOVE IS ONLY ROUGH ESTIMATE BASED ON RECENT EXPERIENCE. FUTURE PROCESSING CAN BE SIGNIFICANTLY DIFFERENT.