Almost every H-1B employees wants their employer to start the green card process for them as soon as possible.
However, when does an employer actually need to start the process to ensure that their employee can continue to work past the 6-year H-1B limit?
In order to be eligible to extend the H-1B beyond 6 years an employee needs to meet one of the following criteria under the American Competitiveness in the 21st Century Act (AC21):
- 365 days or more have passed since the filing of the employee’s Labor Certification (PERM filing), I-140 or employment-based I-485; or
- Employee has an I-140 approval and is not able to file to adjust status to that of a permanent resident (based on their current priority date).
One-year extension
Based on the 365 days rule an employee is entitled to a 1-year extension of their H-1B.
Three-year extension
Based on an I-140 approval, an employee is entitled to a 3-year extension of their H-1B.
Ideally, you want to be able to obtain a 3-year extension for your employee which requires you to have sufficient time to obtain an I-140 and then file the H-1B extension.
At the time of writing this article the processing times for the green card process look as follows:
PERM recruitment and Prevailing wage determination
While the PERM recruitment itself only lasts about 30 days it takes 6 months to obtain a wage determination from the Department of Labor. If the wage comes back at a different level than originally anticipated, it will be necessary to re-post the recruitment (assuming this was done prior to the employer receiving the wage) which lists the offered wage. This is usually just the internal posting unless the employer includes the wage on their website postings. The internal posting would have to be re-posted for 15 consecutive business days and then the employer would have to wait 30 days before filing the PERM.
Based on a 6-month processing time for the wage determination plus say another 2 months for re-posting the internal posting you need to allow 8 months for this part of the process.
PERM approval.
Once the ETA 90890 form is filed with the Department of Labor it usually takes 6 months to be certified. However, those unlucky cases that get selected for an audit can take up to 11 months, so you need to factor in 11 months for this part of the process. Unfortunately, there is no way to expedite the adjudication of the PERM.
I-140 approval
Once the PERM has been certified the I-140 can be filed. Because the I-140 qualifies for premium processing this petition can be approved in as little as 2 weeks. If USCIS challenges the I-140 and issues a Request for Evidence approval could take up to 2-3 months. It is recommended to allow 3 months for this part of the process.
Overall processing times
In the worst-case scenario obtaining PERM and I-140 approval could take 22 months in total (8 months + 11 months + 3 months). This means starting the PERM process by the H-1B employee’s 4thanniversary. This would give you 24 months to get the PERM and I-140 approved, leaving enough time to file an H-1B extension requesting 3 years.
Is it too late for my employer to start the PERM process if have completed 4.5 years on H-1B?
It’s never too late to start the PERM process, but in certain circumstances, the beneficiary may be forced to spend some time outside of the US before they can return in H-1B status.
However, the timeframes given above represent the worst-case scenario. In most cases, the recruitment can be carried out while the wage is in process. The wage determination comes back at the level expected and we file the PERM at the 6-month mark. The PERM gets approved without an audit after 6 months and the I-140 is approved after 2 weeks without an RFE.
Conclusion
While most cases can be completed in 12-13 months to avoid gaps in your employee’s employment it is recommended to start the PERM process by the 4th anniversary.
If you have questions related to the above, please contact PLG Partner cprescott@patellegal.com.