The employment-based green card process requires an indefinite job offer by a sponsoring employer. It is forward looking in that the specific position is the job the employer intends the employee to assume when the green card is issued.
In most cases, the employment-based green card process is comprised of three steps: the Labor Certification (PERM) Application; the company’s I-140 Immigrant Visa Petition; and the employee’s Adjustment of Status (AOS) Application.
How long does the green card process take?
The employment-based green card process may take years to complete in its entirety; employers should plan for at least one to two years from application to issuance of the green card.
The wait time varies depending on government processing times, visa availability and nationality; some individuals face a wait of more than 10 years. As employees progress in their careers while waiting for the government to issue their green cards, employers must consider how job changes may impact the employee’s green card case. For this reason, when starting a green card process on behalf of an employee, employers should adapt a prospective approach and, to the extent possible, identify where the employee will be placed at the time the green card is approved.
Changing jobs during the green card process
It is common for an employee to progress in their career during the green card process, which should prompt a review of the potential impact to the employee’s green card.
As the green card application is position- and employer- specific, changes to the position may result in a change to the indefinite job offer and may require the employer to re-initiate the process. One provision of the law, known as “204(j) portability” or “AC21 portability,” permits foreign national employees to change jobs or employers, without having to restart the green card process, if:
- A Form I-485, Application to Adjust Status, on the basis of an employment-based immigrant visa petition (Form I-140), has been filed and remains unadjudicated for 180 days or more; and
- The new job is a natural progression and/or is in the “same or similar” occupational classification as the job for which the Form I-140 was filed.
In determining whether a new position is in the same or a similar occupational classification as the offer of employment for which a petition was filed, the government will consider a number of factors including: the DOL occupational classification codes assigned to each job, the job duties, skills, experience, education, training, licenses or certifications specifically required to perform the jobs, and the wages offered for each job.
Refilling PERM applications
An employer must re-file a PERM application for a new position offered to the employee if:
- The new position represents a “material” change in job duties as compared to the job on the original PERM and Form I-140 petition (i.e., more than 50% difference in job duties); and
- The employer intends for the employee to assume the new position when they receive their green card.
Employers should consult with experienced immigration counsel for assistance in assessing whether a change in the position or a new position will impact an employee’s green card case.