Navigating H-1B Extensions and the Green Card Process in the EB-3 Category: A Step-by-Step Guide
Introduction
The journey from holding an H-1B visa to becoming a permanent resident in the U.S. is a complex path. Particularly for those pursuing permanent residency via the EB-3 category, this path requires careful planning. This guide aims to provide a clear outline of the steps involved for those navigating this important journey. Whether you are an employer looking to help an employee, or you are someone on an H-1B visa hoping to stay in the U.S. permanently, it's important to understand how the process works, from extending your H-1B visa to finally getting your green card. Let's walk through this process together, making each step clearer and bringing you closer to achieving your goal.
The Road to Permanent Residency: A Step-by-Step Timeline
Achieving permanent residency in the U.S. through the EB-3 category involves a series of important steps. Understanding these steps and their respective timeframes will help you navigate the process. Let's look at the main steps in this process, laid out in a simple, step-by-step timeline:
What should the employee be paid? (Prevailing Wage Determination): The green card process is designed to ensure American workers are not disadvantaged by low cost foreign labor. This is the reasoning behind the rule that says a job’s pay must be at least equal to the “prevailing wage” for the type of role in the location(s) where the job will be performed. These prevailing wage rates are tracked by the Department of Labor, though other types of wage surveys can be relevant in certain cases.
To obtain the prevailing wage, we submit a description of the job to the Department of Labor where it is reviewed and the proper wage is determined. Processing times have fluctuated over the past few years, but at the time of this writing, they are taking roughly 10-12 months. The determination issued by the Department of Labor should rarely be a surprise – an experienced attorney should be able to review the job description in advance and give you an idea of the likely outcome.
Finding the Right Candidate (Recruitment Process): Once the prevailing wage is determined, the next step is ensuring that no qualified and willing American workers are overlooked for the position. This involves a recruitment process where the job is advertised in various platforms to reach potential U.S. candidates. This stage is not just a formality but a sincere attempt to fill the position domestically. The recruitment phase typically spans 2-3 months, during which time the employer must document efforts and responses to prove due diligence in seeking U.S. candidates. This documentation is crucial for the green card application and demonstrates the employer's commitment to hiring domestically when possible.
Recruitment can also be run simultaneously with the prevailing wage determination, but a mistake in timing or predicting the prevailing wage determination could result in the employer having to do the recruitment all over again. This can be expensive and also costly in terms of time, so my preference is to wait for the prevailing wage determination if at all possible.
Preparing and Submitting the Application (PERM Labor Certification): After the recruitment phase, if no suitable U.S. worker is found, the next step is to prepare and submit the PERM labor certification. This document, crucial for the green card process, details the job duties, recruitment efforts, and the conclusion that a U.S. worker for the position was not found. Meticulous preparation of this application is extremely important, including detailed documentation of the recruitment process. The Department of Labor does not show any leniency for errors here. Once it is ready, we submit the PERM application for review, setting the groundwork for the next steps in the green card process.
Review by the Department of Labor (DoL Review): Review of the PERM by the Department of Labor can take 10-14 months (as of the time of this writing) because it involves a thorough examination of the application to ensure all processes were followed correctly and that no qualified and available U.S. worker was overlooked for the role. This review may vary in length depending on the current workload of the Department of Labor and the specifics of the case. A successful review is a green light for the employer and the employee to proceed to the next stages of the green card application, bringing them one step closer to achieving permanent residency.
The Department of Labor also randomly selects a certain percentage of cases for audit and then conducts additional audits based on certain factors which it deems to be cause for further scrutiny. If a case is selected for an audit, it means even more time under Department of Labor review, often more than an additional year.
Extensions beyond 6 years:
The good news for H-1B workers is that they can extend their status beyond the maximum 6-year stay if they meet certain requirements. If an H-1B worker has a pending PERM labor certification (or a pending I-140 Immigrant Petition for an Alien Worker in cases where PERM was not required), and the PERM (or I-140) has been pending for at least 365 days, they are entitled to a one-year extension in H-1B status. It is possible to get unlimited one-year extensions as long as either the PERM or I-140 remain pending. Furthermore, an individual who has an approved I-140, but still cannot obtain a green card due to per-country limitations, can apply for a three-year extension of H-1B status. (People from China, India, Mexico, and The Philippines must currently reckon with long lines for green cards because of the nationality-based way in which they are allocated). Current interpretations of the law also allow multiple three-year extensions for these individuals.
Extending status is a nuanced area and anyone facing this issue would benefit from careful consultation with an experienced immigration attorney. There are also different strategies that can be considered for workers who might be in a different visa class (such as L-1) or who might be looking at a gap in employment authorization because they are approaching their 6-year deadline without a PERM petition pending for the required time period.
These detailed steps and the associated timelines provide a structured roadmap for employers and employees navigating the green card process through the EB-3 category. By understanding and meticulously following these steps, the path to securing a green card becomes clearer and more navigable.
Thoughts? Questions? Let me know.