Green Card Process and Problems
What Is The Process for Getting a Employment Based Green Card?
1. LABOR CERTIFICATION
The foreign worker’s employer files an application for labor certification. A labor certification is an official Department of Labor finding that (1) no U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position in question; and (2) the individual’s employment will not adversely affect the wages and working conditions of similarly situated U.S. workers.
All individuals sponsored by employers are in one of the employment-based (EB) preference categories. A person's preference category is determined by the employment position offered, documentation of the credentials qualifying him or her for the position, and the type of case filed for that individual (based on the position's requirements and his or her qualifications).
- The EB-1 preference category is reserved for people who can meet the stringent requirements and prove to the satisfaction of the USCIS that they have "extraordinary ability" in the arts, sciences or business; are employed as outstanding researchers or professors; or are employed as multinational managers/executives who have worked in a managerial or executive capacity abroad and will continue to do so in the U.S. for a multinational company.
- The EB-2 preference category is for persons of "exceptional ability" or persons in jobs that require that they be members of a profession holding advanced degrees. This category includes people who have at least a U.S. Master's degree (or foreign degree equivalent) where the position being offered either requires a Master's degree as a minimum requirement or a Bachelor's degree (or foreign degree equivalent) and at least five years of post-baccalaureate progressively responsible experience. A labor certification is generally required in this category. If the position for which the labor certification is sought does not require a Master's Degree or a Bachelor's degree and at least five years of experience, then even though you have such a degree, you will not qualify for the EB-2 category.
- The EB-3 preference category is for skilled workers, professionals and other workers. This category encompasses individuals holding at least a U.S. Bachelor's degree (or equivalent) where the position offered requires a Bachelor's degree. A labor certification is required in this category.
2. IMMIGRANT PETITION (I-140)
The employer then files an immigrant petition (I-140) asking the government for permission to hire a specific foreign national to “permanently” fill the job. Most immigrant petitions must be based on approved labor certification applications, because for most jobs, the law requires DOL to find that there is a shortage of U.S. workers for the job.
3. ADJUSTMENT OF STATUS (I-485)
The I-140 petition provides the basis for the employee's I-485 application for adjustment of status (AOS) to permanent residence. The employee, along with his/her dependents, can file his or her I-485 application with the I-140 or after the I-140 is filed, as long as his or her "priority date" is current. "Priority dates" are the queuing system for cases under an immigrant quota.
The annual limit for EB visa numbers is 140,000. This number also includes the dependents of an EB applicant. In addition there is a per-country limit set at 7% of the total. The Department of State publishes a Visa Bulletin each month that announces “Visa Cutoff Dates” by EB preference, national origin and priority date. So if the applicant’s priority date is after the Visa Cutoff date for the applicant’s category (i.e. “not current”) then the employee cannot file for this last stage of the green card process.
A category that is “not current” is said to be subject to Retrogression. See examples below.
What Are The Problems?
1. LABOR CERTIFICATION
Congressional Intent: Certification Completed in 21-60 DAYS.
Reality: 350,000 cases pending in DOL Backlog Elimination Centers (DOL-BEC). Includes applications with PD in 2000 – 6 Years old!
Reality: Immigration Voice members waited / waiting for an average of 3 years!
Reality: Very little known about DOL-BEC process and prioritization. Seems near random.
2. IMMIGRANT PETITION (I-140)/ADJUSTMENT OF STATUS (I-485)
Congressional Intent: I-140/I-485 approvals in 6 MONTHS.
Reality: 271,000 EB I-485 pending at CIS (all categories)! YEARS of delay for highly skilled applicants (Economic Report of the President, Jan 2005).
Reality: Retrogression - if Visa Numbers not available for a particular EB category, applicant cannot even file I-485 – YEARS MORE of delay.
Reality: Retrogression - if Visa Numbers become unavailable after forms are filed, those applicants not considered part of “backlog” – not counted as pending! YEARS MORE of delay .
Retrogression in Action: Disparate Impact on Different Countries
In Oct 2005, USCIS announces
- 6 YEARS Retrogression for Indian EB-2 (professionals with advanced degrees or exceptional ability) and 5 YEARS for Chinese EB-2; Indian EB-3 applicants retrogressed 7 YEARS!!
- I.e. Indian EB-2 applicants with Priority Dates (PD) before Nov 1999, unable to file I-485. This after YEARS long delay in labor certification.
- However, applicant with identical PD, skills and job from other countries may file I-485 right away. Not First (Equivalent Skill) Come, First Served system.
- Does not account for world distribution of skills or industry needs. Industry needs highly skilled tech workers. India and China have invested in tech and science education (32% of US undergrads in science and engineering, 59% in China). Policy set as though all countries have same distribution of skills.
Retrogression: Why Now?
- Annual Limits on EB – 140,000 – dependents included only 67,630 primary EB applicants eligible.
- Per-Country Limits – 7%, when per-country limits are binding only 1,350 primary applicants for each EB subcategory eligible.
- USCIS processing less than annual limit, loss of visa numbers (141,000 in 2001-2004), not automatically recaptured for next year or backlog.
- AC21 mandated recaptures of visa numbers lost in 1999-2000 –used up in 2005.
- Bureaucratic delays since 2001, followed by sudden approval of I-485s in past year – disproportionate demand for numbers in annual limit. DOL BEC backlog introduced very old cases into stream.