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Why should I care if I still have a few years remaining on my H1? Print E-mail
What are the various steps in the Green Card Process?

There are primarily three steps in the Green Card process for employment based category

1) Labor certification - This proves that the firm cannot find anyone with a particular skill set that you have and hence they would like to use an alien for the job

2) I-485 filing - Once a labor is approved, an I-485 form can be filed which indicates intent to immigrate. The benefit of filing an I485 is that after 180 days, if no decision has been reached on I-485, an EAD card can be filed for. The EAD card allows the employee to change jobs to a similar job and also provides employment authorizations for spouse to work. As a result of this you are not tied to one company

3) I-140 - One can file for an I-140 now once the labor is approved

On an average, the whole green card process used to take anywhere from 2 to 5 years based on the whims of the USCIS

But isn't PERM supposed to make things faster? Isn't it the cure for all these delays?

PERM is the new electronic labor certification process used by USCIS since march 2005. Technically results for PERM should be available within 30 to 60 days from date of filing instead of the two years it used to take before PERM. But remember, it speeds up ONLY the labor certification and not the last two stages!

So doesn't this in fact reduce the time it requires for my Green Card Process?

Ideally it should, but we do not live in an ideal world. The problem is the reason we visit these forums : Retrogression

With the current process, you might get your PERM labor approved in a total of 3 months, but then you would have to wait for your priority date (Your priority date is the date on which your Labor Certification was received by the Dept. of Labor as per to become current before you can even file for I485 thanks to retrogression.

Consider the example of someone (born in a country other than India, China, Mexico, Phillipines) applying for a labor via PERM in Feb 2006 in the EB3 category. Assuming the PERM goes through without any issue, the labor will be done by say June 2006.

But now this person cannot file for I485 because of retrogression. The current priority date for EB3 (Worldwide) is 22APR01 as per the latest visa bulletin available here

As a result, this person has to wait for another (maybe) 5/6 more years before his priority date might be current and he can file for I485. The I485 can take another year or two based on various conditions. Totally, this means that the Green Card Process can take about 7/8 years

But it gets more interesting if the person happens to be born in India/China/Mexico or Phillipines. For example if this person is born in India, the priority date is 01JAN00. As a result, this person might take even longer to get his Green Card

Why should I worry about this? I am still on my 1st year of H1!

Lets say that you have just started working on H1 and have applied for labor via PERM. It will take about 6 months for the labor to get done which means you have about 5.5 years remaining on the H1 visa. Now you would have to wait for another 5/6 years just to apply for the I485 and derive the benefits of the EAD card.

That puts you straight on the final year of your H1 (6 years total for H1 visa).

There are many issues that you might face in the 5 years from the labor certification to the point when your priority date becomes current

1) During this period, technically your duties at job cannot change by much. If you want to go from technical to a managerial position in these 6 years (which is a reasonable time frame for a promotion like that), your Green Card process has to be started all over again. Assuming that you are ready to sacrifice any promotion to ensure you do not lose you place in the queue, you will have No Promotion

2) Chances are you might want to switch jobs to another company. This again means that your Green Card process has to be started from scratch. Again, assuming that you are ready to sacrifice that too, it means Staying with the same employer for atleast 6 years without promotion.

I am ready to make the above sacrifices. Retrogression won't affect me, right?

Absolutely wrong.

What happens if your company goes bankrupt? Don't discount that idea, even a company like Enron went belly-up!

What if the company you work for starts laying off people? They cannot possibly file your Green Card while laying off other people!

What if your firm gets bought over by another firm?

What happens if your company relocates?

What if your boss makes your life miserable?

The list is virtually endless.

And also, one can remain legally in US after the 6th year only if your Green Card process is going on. If any of the above happens after the 6th year of H1, you have no option but to pack your bags and head home!

These are all factors that will affect your Green Card and hence we all need to put up a fight against the very cause of our miseries. Retrogression is an evil that will remain with us unless we all do something about it NOW!
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Robert Hoffman Robert Hoffman
Senior Vice President of ITI
Ilya Shapiro Ilya Shapiro
Senior Fellow in Constitutional Studies, CATO Institute



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