When it comes to Green Cards, many of my peers think I should leave it to the professionals (HR and Lawyers). While there's some truth in that statement, knowing a little about Green Cards have saved my hide on numerous occasions.
Probably the single most important lesson I've learned in Staffing is that it's never black and white, but rather a fluid and ever changing scenario that bends to those that will it. No does not always mean no, you just have to find a good enough solution to outweigh the objection.
Greencard
Stages, Time-frame and Estimated Costs
One of my Hiring Manager refuses to hire candidates on Visas because of the complexity, time investment and cost of Green Cards. While conducting a fairly difficult search for them, I came across the perfect candidate, only to find out she's on an H1B.
How did I convince the team to entertain her candidacy? I dug a little deeper and realized she already has her I-140 approved as an EB2. The real kicker is she has a priority date that is about 8 year away from getting her I-1485.
When I provided this information to the HM, they immediately wanted to interview her. And as predicted, they presented her with an offer and she gladly accepted.
So what does all of this mumbo jumbo mean? Why was my client willing to back peddle on their stance on hiring candidates with Visas? Read on and find out.
What is a Green Card
A Green Card (officially known as a Permanent Residence Card - PRC) allows immigrants to gain permanent residency (and ability to work for anyone) in the US either thru family based or employment based sponsorship. Since this site is called Staffing.IQ, we're only going to talk about the later of the two options.
[ STAGES ] There are 3 basic stages
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PERM/Labor certification stage
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I-140 immigration petition
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I-1485 Application to adjust status
[ CATEGORIES ] Employment-based GC can only be processed by the employer (not something the candidate can initiate on their own) and is filed under one of five categories. The naming convention starts with EB (employment-based) and a number 1 to 5. EB1 thru EB3 applies to us. EB4 is for religious workers and EB5 is for folks that invest 500k or 1M into a business and creates 10 full-time jobs for US workers.
Categories - it Matters
The category that you are filed under significantly determines how soon you will receive your GC. EB1 has the highest priority which means the quickest turnaround. Next comes EB2 and finally EB3 with the least priority.
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EB1: Extraordinary Ability - for those that are viewed as outstanding professors/researchers or multinational executives/managers. For example, a Nobel Peace Prize winner. As you can imagine, very few applicants fall under this category. EB1s do NOT need to obtain a labor certification. An exception to the sponsorship rule, EB1 can be self sponsored.
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EB2: Professionals with advanced degrees. Typically this means a US Master's degree or higher. You can also get away with a US Bachelor's degree (or equivalent) + 5 years of experience but those have to be related to your degree. You can also file for an EB2 if you are deemed to have Exceptional Ability in the sciences, arts, or business. You must meet at least 3 of the items on this list.
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EB3: Skilled Workers, Professionals, or Other Workers. This category is for everyone else that can't meet the first two categories.
Stages of GC Process
OK, here comes the fun part. The stages sound more complicated than it really is. The diagram below will help with the flow.
[ STAGE 1 ] Labor Certification / PERM (Program for Electronic Review Management)
Details: This is where it all starts. If someone wants to apply for a GC, they start by filing out PERM. There are 3 steps to PERM
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Prevailing Wage Request: the employer must get a prevailing wage determination from the US Department of Labor (DOL). This is the wage an average person should be compensated based on the location, skillset, education and experience level. The employer must pay this worker above this prevailing wage (this is a good resource to guesstimate what a prevailing wage looks like). Uncle Sam does this to protect U.S. workers by making sure employers don't exploit foreigners by paying them less than what an average U.S worker will get paid. Without this clause, employers will have an incentive to hire cheap foreign labor, which in turn displaces U.S. workers.
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Recruitment Period: the employer must show the applicant (a foreign worker) is not taking away jobs from qualified US workers. To do this, the employer must show proof by advertising in a newspaper ad for a minimum of 30 days, plus allow 30 additional days for applicants to respond.
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Application: the employer submits the form ETA-9089 online. After, the DOL will send a follow-up questionnaire to the employer. If this is not completed in a week, DOL will make a phone call a max of 3 times. Failure to respond will delay the process. Also, if the application is audited, it will also cause delay.
Time: Prevailing Wage Request could take from several weeks to a couple of months. Recruitment process will most likely take around 60 days. Application takes 6 months w/o any RFE. Ideally you can finish this within 9 months, but cautious estimate will be ~ 12 months.
Costs: These are the legal fees that we're currently paying. These prices could go up or down. Only use it as a gauge of costs. Legal Fees and Office Expenses are around $3500. Advertising for Labor Certification is ~$2,000-2,500. This brings us to a total of ~$5,500 - $6,000.
Additional Note: If PERM Labor is filed 365 days before the H1B visa expiry date, then the H1B visa can be extended in 1 year increments. This is because while a H1B can only go for a max of 6 years (two 3-year terms), the road to a Green Card can take over 10 years. Easy litmus test is if the person has their I-140 approved, then you don't have to worry about the max term limits of H1B. They are entitled to a 3 year extension until their green card is finished.
[ STAGE 2 ] I-140 immigration petition
Details: This must be filed within 180 days of the DOL approval date on the labor certification. The purpose of the I-140 is two fold. First, it verifies that the job requirement on the PERM application is met by the Green Card applicant. Second, it verifies the employer is able to pay the rate to the employee.
Time: Approximately 4-6 months, but it's only 15 days with premium processing.
Costs: Form I-140 USCIS filing fee = $700 for regular processing and $1,410 for premium processing (subject to change by Government). Lawyer Fees are ~$1,650 due upon approval of Labor Certification. Total is ~ $3k if you choose premium processing.
[ THE WAITING GAME ] Once your PERM application is complete and I-140 is approved, then there's nothing more to do than wait.
Priority Date: You will receive a Priority Date that is equal to the date of your PERM application's completion date. Think of Priority Date as your number in line. Your number needs to be called before you can finalize your Green Card application. Because there are more applicants than Visa slots available, a major lag exists between your Priority Date and what's being processed. How long you must wait depends on your priority date, preference category and the country you're from.
Check for status via the Visa Bulletin. You can try and estimate when your priority date becomes current, but it's a hit or miss.
This example is taken from the September 2019 bulletin. If you filed as an EB2 and are from India, they're only processing GCs with a Priority Date of 08MAY2009. That's a 10 year lag! This gets worst if you filed as an EB3 from India, which is about 4 years behind an EB2. But if you filed as an EB3 from Mexico, they're already working on apps from 01JUL2016. This chart illustrate the importance of country and category.
[ STAGE 3 ] I-485 Adjustment of Status, aka Green Card Application
Details: Once your Priority Date becomes current, you can now submit a I-485 to finally get your Green Card. During this time you can also file for an EAD and Travel Permit (Advanced Parole). Once the I-485 is approved, the employee will get a stamp in his/her passport and soon after receive the physical green card by mail.
Time: It normally takes 6 months to process the I-485.
Costs: USCIS charges $1,140 for the I-485, plus an additional $85 per person for biometrics services. Lawyer fees will run around $1650. In total, costs ~$3k.
The answer was simple, all I had to do was show someone else had already done the heavy lifting for them. A typical GC sponsorship will run between $15-20k. Since my candidate just got their I-140 approved as an EB2 and the Visa Bulletin says it's probably going to take another 8 years before it's current, we didn't need to incur additional GC costs (at least for another 6 years). If the candidate is still with us in 6 years, the retention value of the employee far outweighs the cost of $20k/8 years.
They were also worried about the H1B cap of 6 years, but because my candidate already has her I-140 approved, her H1B will be able to renew every year, indefinitely.
This was also a very important role for the company to fill. The difficulty and significance of the role provided some wiggle room, all I had to do was drive it home.
Back to our Story
So now that you know how the Green Card process works, why did you think my mgr changed their mind?