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Green Card or Permanent Residence process is a way to make your foreign national employees permanent in the US. The process is more complex than H-1B filing and means additional commitment from the employer. In this article, we'll cover some important aspects of the process and what employers could do to build a strong immigration strategy for their companies.
The Importance
Most high skilled immigrant workers in the US depend on their employer for sponsoring them for permanent immigration to the US. As a result, this sponsorship has become a valuable talent retention and acquisition tool.
The Process
For some context, here is a quick overview of the process of sponsoring an employee.
Step 1 – Dual Intent Visa
The employee must already be on a dual-intent visa (H-1B or L1) visa in the US for the employer to initiate the green card process. The dual-intent visa is necessary for legally applying for permanent residence while staying in the US. Other visa types, such as F-1, TN, or E3 are not eligible for permanent residence while the employee remains in the US.
Step 2 – Labor Certification (PERM)
The first step is to get a permanent employment certification. The company must prove that they have carried out reasonable recruitment efforts to hire a US citizen or permanent resident. They must also pay the standard wages in the location that are determined by the DOL's prevailing wages database. There are several rules around the recruitment efforts. Depending on the strategy adopted, recruitment documentation can take a few weeks to six months or more. All costs for this portion of the process must be borne by the employer.
Step 3 – Immigrant Visa Petition (I-140)
Once the PERM application is certified, the employer can file the immigrant visa petition. It is a relatively straight-forward step. Premium processing, which gives a decision in two weeks, is available for an additional fee. A pending I-140 enables the employee to receive 1-year extensions on their H-1B or L1 visas beyond the normal 6-year limit. Further, an approved I-140 enables 3-year extensions on their H-1B or L1 visa. The cost for this step can either be paid by the employer or the employee.
Step 4 – Adjustment of Status (AOS)
Once the I-140 is approved, the employee must file for AOS to convert to permanent residency. The approval time depends on the country of birth and visa preference category based on the details of the application. US law currently limits the number of employment-based permanent resident visas to 140,000, with a per-country limit of 9,800 a year. Currently, there are about 800,000 applications for employment based AOS applications pending with the USCIS. The vast majority of these are Indian and Chinese nationals. As a result, people born in these countries have extended wait times for available visa numbers.
The Strategy
Recruitment
When your company operates at the cutting edge of technology, filling some of the most demanding skills becomes very challenging. A competitive sponsorship policy and top-notch immigration team become important recruiting tools*. Employees seek out employers who they know will have their best interests at heart when it comes to immigration matters.
Sponsorship Policy
A typical policy is to start the permanent residence process after one year of satisfactory performance on the job. As we saw earlier, the labor certification process can be quite lengthy. Starting early ensures that there is sufficient time left in the employee’s non-immigrant visa for filing I-140.
Of course, the actual date of filing must be tailored to the individual employee’s situation. For example, for an employee already in fifth year of their H-1B visa, applications must be started as soon as possible. It is important to have someone in charge of this process, so that timelines can be met.
Another matter to note, several countries allow visa free travel for US green card holders, making corporate travel smoother. When the job entails frequent travel, sponsorship should be considered sooner rather than later.
If multiple applications are scheduled to start within a relatively short time, the employer can save some time and money by “batching” the process so that the personnel/services involved and the recruitment efforts can be used more efficiently.
Preference Categories
Employment based immigration comes in three preference categories – EB-1 (extraordinary ability), EB-2 (advanced degree), and EB-3. The difference in backlog lengths can often be substantial depending on the employee’s country of birth. It is thus advantageous to support an application in as high a preference category as possible.
Cost-sharing
While some portion of the permanent residence process must be paid by the employer, others can be paid by either employee or employer. Also, employers may choose to bear the cost for employee’s dependents.
Termination/Separation Policy
Since there is significant cost involved in permanent residence sponsorship, a reimbursement clause, in case of voluntary separation, may be considered.
There is not a one-size-fits-all strategy that will work for every company or employee. Formulating a coherent and transparent strategy will make sure all stakeholders feel they are in control of their destiny.
Every company has specific needs and expectations. WayLit helps employers create a strategy that's tailored to their company and employees. If you need to talk with an expert please reach out to support@waylit.com.
*https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/Tips-Managing-Green-Card-Sponsorship-Policies.aspx
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.
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