Answer ... Obtaining settlement or US permanent residency entails either a two or three-stage green card application process, depending on the immigrant visa preference category that serves as the underlying basis for the green card application.
Immigrant visa preference category |
Green card application process |
All EB-1 categories |
Two-stage application process:
- immigrant visa petition; and
- Form I-485 Adjustment of Status or consular processing.
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EB-2: Exceptional Ability |
EB-2: National Interest Waiver |
All family-based preference categories |
EB-2: Advanced Degree or Equivalent |
Three-stage application process:
- PERM labour certification;
- Immigration visa petition; and
- Form I-485 Adjustment of Status or consular processing.
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All EB-3 categories |
PERM labour certification: For certain employment-based EB-2 and EB-3 immigrant visa preference categories (see question 4.3), a prerequisite to filing the Form I-140 Immigrant Visa Petition is securing a certified PERM from the DOL. In such cases, it is the sponsoring US employer that must file for both the PERM and the I-140 on behalf of the beneficiary employee or prospective employee. The US employer must meet certain employer obligations, including:
- a good-faith test of the US labour market for a US worker who is willing, able, available and qualified for the sponsored job opportunity (and confirmation that no such US worker was identified or available);
- the intent to offer the individual a long-term position as described in the application by the time the individual is granted permanent residency; and
- the financial ability to pay the proffered salary among other employer obligations throughout the sponsorship process.
(See 20 CFR 655 and 8 CFR 204.5.)
Immigrant visa petition: Applying for US permanent residency is a multi-stage application process. Whether applying for permanent residency from abroad or in the United States, the individual must secure an approved immigrant visa petition. For employment sponsorship, this visa petition is known as the Form I-140 Immigrant Visa Petition; whereas for family sponsorship permanent residency applicants, the immigrant visa petition is known as the Form I-130 Immigrant Visa Petition. The immigrant visa petition under both the employment and family-based routes contains several preference categories. An individual’s eligibility for a green card is based on one of those preference categories. The approved immigrant visa preference category then forms the basis for the green card application and will determine how quickly the individual receives his or her green card.
Individual background application (‘Form I-485 Adjustment of Status’ or ‘consular processing’): Aside from securing government approval of the relevant immigration visa, applicants must also undergo an application process that evaluates their background, to include aspects such as:
- work and residence history;
- family and marital status;
- arrest record/criminal history;
- membership of military/political organisations;
- US immigration history; and
- medical/vaccination report.
For applicants applying in the United States, this application stage is known as Form I-485 or I-485 Adjustment of Status Application (AOS). Once the AOS is approved, the physical green card is produced and mailed to the US applicant, at which time he or she has officially secured permanent residency.
For applicants applying for a green card while abroad, this background application stage is known as ‘consular processing’: the individual must go to the US consulate for an interview and his or her background documents will be submitted to the National Visa Center prior to the interview. If approved, the US consulate will issue an immigrant visa stamp in the individual’s passport and the individual can then enter the United States based on the immigrant visa. Upon entry into the United States, US Customs and Border Patrol will then admit the individual as a US permanent resident. Once admitted as a US permanent resident, the physical green card is mailed to the individual’s US residence.
Timeframe: Applying for a green card is a lengthy process that entails multiple steps. Aside from completion of the various requirements outlined above, green card applicants (and petitioning employers) should consider two factors that are beyond their control:
- government processing times; and
- visa availability
Government processing times: Each of the application stages above will require the adjudication of the respective government agency with jurisdiction over that particular application process. Government processing times vary and applicants should refer to the respective government agency websites for the most current government processing times.
Visa availability: Whether applying for the green card through the two-stage or three-stage process, the PERM application and the immigrant visa petition stages may be pursued as soon as the employer and employee have met all requirements and can produce the required documentation (see above). There are no quota limits in terms of the number of PERM applications which the government may approve; nor are there numerical limitations on the number of I-130 or I-140 Immigrant Visa Petitions approved. However, the government has set numerical limitations on the number of green card visas allotted per year. Therefore, irrespective of the two-stage or three-stage process, an individual cannot proceed with the last application stage (I-485 AOS or consular processing) until a green card visa is available.
The government and the regulations refer to the green card numerical limitation as a numerical limitation on ‘immigrant visas’. Its usage of the term ‘immigrant visa’ in this numerical limitation context should not be confused with its ability to grant the I-130 or I-140 Immigrant Visa Petition, as there are no numerical limitations on the number these granted per year. Therefore, for clarity, we use the term ‘green card visa’.
Whether a green card visa is available will depend on several variables:
- the applicant’s country of birth or chargeability;
- the applicant’s immigrant visa preference category;
- the applicant’s immigrant visa priority date; and
- supply and demand.
An individual’s immigrant visa priority date is the date on which the I-130 or I-140 Immigrant Visa Petition is filed and is reflected on the government’s immigrant visa receipt or approval notice. However, for certain employment preference categories where a PERM labour certification is a prerequisite to filing the I-140 petition, the date on which the PERM was filed is the priority date and is subsequently reflected on the government’s I-140 receipt or approval notice.
Each month, the DOS releases a Visa Bulletin identifying the priority dates that are ‘current’ or ripe for the last application stage submission and approval – based on country of birth and preference category. USCIS will then use the DOS Visa Bulletin to determine which I-485 AOS applications it will accept and adjudicate for that particular month (in-county applicants); and US consulates and embassies will similarly use the DOS Visa Bulletin to determine which consular processing applicants will be afforded an interview (abroad applicants). Unlike the I-485 application, where the in-country applicant must closely monitor both the monthly DOS Visa Bulletin and the USCIS website to discern when his or her priority date is ripe for application submission, consular processing applicants applying from abroad should automatically receive an interview notification from the US consulate or embassy within several weeks of their priority date becoming current. Therefore, the applicant’s priority date, preference category and country of birth/chargeability determine his or her ‘place in line’ for the green card.
Numerical limitations: Only 226,000 family-based visas and 140,000 employment-based visas are allotted annually. If any visas are unused in a given fiscal year, the visa numbers roll over to the following year. However, for many of the family-based preference categories, as well as for EB-2 and EB-3 India or mainland China-born applicants, demand exceeds supply. For example, based on the below February 2022 Visa Bulletin, the government is only issuing green cards to EB-3 India-born applicants with a priority date earlier than 15 January 2012. This means that a typical India-born applicant filing for a green card under the EB-3 preference category must currently wait 10 to 12 years before receiving his or her green card (this estimate takes into account current USCIS processing times of up to 18 months).
(See US Department of State February 2022 Visa Bulletin.)
Exceptions to numerical limitations – ‘immediate relatives’: As mentioned in question 4.2, US permanent residency is “immediately available” to those foreign nationals who are ‘immediate relatives’. In other words, unlike all other immigrant visa preference categories, there are no numerical visa limitations for immediate relatives and therefore a green card ‘visa’ is immediately available to immediate relatives. Those who qualify simply need to submit their Form I-130 and I-485 applications to the government and need not wait for a visa to become available, but should still account for government processing times.
A foreign national is an immediate relative if he or she is:
- the spouse of a US citizen;
- an unmarried child under 21 years of age of a US citizen; or
- the parent of a US citizen child who is at least 21 years of age.
Employment-based categories that typically exceed supply: The EB-1 preference category (‘priority workers’) typically remains current year-round, irrespective of birth/chargeability country. In the occasional months where the EB-1 category retrogresses (typically in the summer/autumn, when the fiscal year end is nearing), this category will typically become current again by October of the new fiscal year.