Immigrant Services

Employment-based green card processes by way of PERM Labor Certification are ultimately classified under EB-2 (professionals with advanced degrees) or EB-3 (skilled workers, professionals, and other workers) immigrants. Although the formal election for the immigrant preference category is made at the I-140 stage, the job requirements set forth in the PERM determine whether the position is eligible for EB-2 or EB-3 classification.

Green card processing by way of PERM Labor Certification involves three main steps as outlined below.

STEP 1: PERM Labor Certification
The PERM is filed with the U.S. Department of Labor (“DOL”) to certify no qualified U.S. workers willing and available to fill sponsored position. This process involves multiple pre-filing steps, including obtaining a prevailing wage determination from the DOL to determine the minimum wage an individual in the sponsored position must be paid and completing a number of mandatory advertisements to test the labor market. Between DOL processing times for prevailing wage requests and the required timelines for recruitment, the PERM process often takes up to 6 months or longer from initiation to filing.

STEP 2: I-140 Immigrant Petition
The I-140 petition is filed by the employer with USCIS to confirm company’s offer of permanent employment and ability to pay the required wage. The I-140 petition also establishes the employee’s qualifications for job offered, per the requirements set forth in PERM Labor Certification.

I-140 approval is the basis for applicant’s eligibility to complete the last step of the green card process by adjusting status of consular processing an immigrant visa (step 3 discussed below). If the applicant is not subject to an immigrant backlog, they may be eligible to file the I-140 petition concurrently with the I-485 Application to Adjust Status (i.e., file steps 2 and 3 with USCIS at the same time), if they are lawfully present in the U.S. and opt for an adjustment of status versus consular processing of an immigrant visa.

If the applicant is subject to an immigrant backlog, the I-140 will establish their priority date that serves as their place in line for a green card. The priority date is ultimately the date on which the PERM Labor Certification was filed (or the date of the I-140 filing if a PERM is not required). If the applicant has a previously established priority date from a prior I-140 filing, they will retain that date on any subsequent I-140 approvals. Once the applicant’s priority date is current under the applicable preference category and country of chargeability in the Department of State Visa Bulletin, they will be eligible to proceed with step 3 below.

STEP 3: Adjustment of Status or Consular Processing of Immigrant Visa
The actual green card application can be filed with USCIS as an adjustment of status (Form I-485) or completed via consular processing at a U.S. consulate or embassy outside of the United States. This stage of the process is to determine the foreign national’s eligibility for permanent residency (i.e., no serious criminal record, status violations, threats to national security, etc.).

In order to file an Adjustment of Status (“AOS”) application with USCIS (Form I-485), the foreign national must be lawfully present in the U.S. at the time of filing. As a benefit of filing an AOS application, the foreign national will also be able to file I-765 and I-131 applications for an Employment Authorization Document (“EAD”) and Advance Parole (“AP”), which serve as a work and travel permit (ultimately issued as a combined EAD/AP card) while the green card is pending.

As an alternative to filing an I-485 Application to Adjust Status with USCIS, the foreign national can apply for an immigrant visa through the U.S. consulate in their home country. Consular processing does not allow for an EAD/AP card.

The decision to adjust status or consular process is entered on the Form I-140 (Step 2 above). This election may be changed after the filing of the I-140 petition but doing so may cause processing delays or additional fees, so foreign nationals should give careful consideration to which path is best for them.

Certain employment-based green card classifications do not require a PERM Labor Certification, which generally allows for a much quicker process, especially under the EB-1 preference category which usually is not backlogged for any country of chargeability. There is also a sub-class of the EB-2 preference category that does not require a PERM Labor Certification, referred to as a National Interest Waiver (NIW).

Step 1: I-140 Immigrant Petition
EB-1 or NIW eligibility is established through the I-140 filing, which is step 1 of the employment-based green card process in situations where a PERM Labor Certification is not required. With three sub-classes of the EB-1 category in addition to the NIW, there are ultimately four ways to file an I-140 petition without a PERM Labor Certification. Individuals may self-petition under EB-1A or NIW, all other employment-based preference categories require a job offer and employer-sponsored immigrant petition.

• EB-1A – Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. The I-140 Immigrant Petition may be filed by a prospective U.S. employer or self-petitioned by the applicant. The criteria to qualify for EB-1A classification is outlined in further detail here.
• EB-1B – Outstanding professors and researchers with at least three years of qualifying research or teaching experience, who are recognized internationally. Applicants in this category must be seeking a tenure track teaching or a comparable research position at a qualifying research organization. The prospective employer must provide a job offer and file an I-140 Immigrant Petition for Alien Worker with USCIS on the foreign national’s behalf. The criteria to qualify for EB-1B classification is outlined in further detail here.
• EB-1C – Multinational managers or executives who have been employed for at least one of the three preceding years by an overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be seeking to work in a managerial or executive capacity in the United States. The prospective employer must provide a job offer and file an I-140 Immigrant Petition with the USCIS on the foreign national’s behalf.
• EB-2 Based on National Interest Waiver (NIW) – Individuals holding an advanced degree or exceptional ability seeking a national interest waiver must demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The proposed endeavor must have substantial merit and national importance; the person must be well positioned to advance the endeavor; and it must be beneficial to the U.S. to waive the PERM Labor Certification requirements. The criteria to qualify for a National Interest Waiver is outlined in further detail here.

Since a PERM Labor Certification is not required for the preference categories described above, the applicant’s priority date will ultimately be the date on which the I-140 petition is filed. If the applicant has a previously established priority date from a prior I-140 filing, they will retain that date on any subsequent I-140 approvals.

Since the EB-1 preference category is typically free of an immigrant backlog, most applicants will be eligible to file an I-485 Application to Adjust Status concurrently with the EB-1 I-140 petition (i.e., file steps 1 and 2 with USCIS at the same time), if they are lawfully present in the U.S. and opt for an adjustment of status versus consular processing of an immigrant visa.

If the applicant is subject to an immigrant backlog (because of their country of birth under EB-2 or in rare, usually temporary, instances of an EB-1 backlog), they will be eligible to proceed with step 2 below once their priority date is current under the applicable preference category and country of chargeability in the Department of State Visa Bulletin.

Step 2: Adjustment of Status or Consular Processing of Immigrant Visa
This step ultimately looks the same, regardless of the applicant’s preference category and whether a PERM Labor Certification was required as part of their immigrant sponsorship. In all cases, the actual green card application can be filed with USCIS as an adjustment of status (Form I-485) or completed via consular processing at a U.S. consulate or embassy outside of the United States. This stage of the process is to determine the foreign national’s eligibility for permanent residency (i.e., no serious criminal record, status violations, threats to national security, etc.).

In order to file an Adjustment of Status (“AOS) application with USCIS (Form I-485), the foreign national must be lawfully present in the U.S. at time of filing. As a benefit of filing an AOS application, the foreign national will also be able to file I-765 and I-131 applications for an Employment Authorization Document (“EAD”) and Advance Parole (“AP”), which serves as a work and travel permit (ultimately issued as a combined EAD/AP card) while the green card is pending.

As an alternative to filing an I-485 Application to Adjust Status with USCIS, the foreign national can apply for an immigrant visa through the U.S. consulate in their home country. Consular processing does not allow for an EAD/AP card.

The decision to adjust status or consular process is entered on the Form I-140 (Step 2 above). This election may be changed after the filing of the I-140 petition but doing so may cause processing delays or additional fees, so foreign nationals should give careful consideration to which path is best for them.

The primary concern of most applicants is: “which is the fastest way to permanent residence?” While getting a green card as quickly as possible is important, several other factors must be considered when deciding which is the better route. It is also important to remember that processing times are always subject to change and may be different based on the unique circumstances of each case. What may have been the quicker path at one point in time or in some situations might not be the fastest or most advantageous option for everyone. We outline each step and other considerations of the adjustment of status versus consular processing below. Also see the comparison chart at the end of this section for a summary of key differences between both options.

Adjustment of Status (“AOS”):

Typical Steps After or Concurrently with the Filing of an I-140 Immigrant Petition: Filing of Form I-485 Application to Adjust Status > Biometrics Appointment > Issuance of EAD/AP > AOS Interview > Issuance of Green Card.

1. Filing of Form I-485 Application to Adjust Status with USCIS.
   The applicant must be lawfully present in the United States in order to file an I-485 application. If the foreign national is not subject to an immigrant backlog per the Department of State Visa Bulletin, the I-485 Adjustment of Status application may be filed concurrently with the I-140 Immigrant Petition. Otherwise, the I-140 Immigrant Petition is filed separately, and the foreign national is assigned a priority date which establishes their place in line for a green card. Foreign nationals subject to an immigrant backlog may file an I-485 application once their priority date is current. As a benefit of filing an AOS application, the foreign national will also be able to file I-765 and I-131 applications for an Employment Authorization Document (“EAD”) and Advance Parole (“AP”). The I-765 and I-131 applications are typically filed together with the I-485 application. Once approved, USCIS issues a combined EAD/AP card that serves as a work and travel permit while the AOS application remains pending. IMPORTANT NOTE: For most applicants, the filing of the I-485 application imposes a restriction on international travel until their concurrently filed I-131 Application for Advance Parole is approved. It is important to understand this requirement and how it applies to you, as departing the U.S. without an Advance Parole document may trigger the abandonment of your I-485 application to adjust status.
2. Biometrics Appointment.
   The applicant is scheduled for a biometrics appointment at a local USCIS Application Support Center. This is a procedural step for USCIS to collect fingerprints and a recent photo of the applicant. The biometrics appointment is typically scheduled within 1-3 months after the I-485 application is received by USCIS, but may vary depending on location, appointment availability, and processing procedures at various service centers.
3. Issuance of EAD/AP (if I-765 and I-131 applications filed concurrently with I-485).
   This ends the travel restriction associated with the filing of the I-485 application noted above. EAD/AP cards are typically valid for 1-2 years and may be renewed as many times as needed while the applicant awaits final adjudication of their adjustment of status. Processing times for EAD/AP applications vary and are subject to frequent change. Current USCIS processing times can be found here, by searching both form numbers I-131 and I-765, and expanding form types list to find I-765 applications based on a pending I-485 adjustment application (c)(9).
4. AOS Interview.
   The applicant is scheduled for an in-person interview at a local USCIS field office. Employment-based green card applicants are sometimes issued a green card without a local office interview, but there is no process or formal review procedures for determining when an interview will be waived. Rather, it is at the discretion of USCIS and most often depends on the circumstances of the case and appointment availability.
5. Issuance of Green Card.
   Assuming all goes smoothly at the in-person interview and no further documents are required for adjudication, the I-485 application will go to a supervisor for final USCIS approval, and the green card will be produced shortly thereafter. The green card will be shipped to the applicant’s U.S. residence and should be received within 30 days of approval. USCIS processing times for I-485 Applications to Adjust Status vary and may be impacted by a number of factors, including case-specific details and other circumstances outside of the applicant’s control. AOS processing could also be paused at any point in the process in the event that the Visa Bulletin retrogresses and the applicant’s priority date is no longer current under the Final Action Dates chart. Current USCIS processing times can be found here by searching form I-485 (see “employment-based adjustment applications” under form type).

Consular Processing:

In addition to the summary below, see the Department of State’s overview of the immigrant visa process, including information on the latest processing times. We outline the main steps below.

1. Upon approval of the I-140 petition, USCIS sends notice of approval to the Department of State National Visa Center (NVC).
2. If a visa number will be available for the applicant in the next year (i.e., if they are not subject to an immigrant backlog), the NVC sends an invoice for the applicant or attorney of record to pay the visa fee. If the applicant is subject to an immigrant backlog, the NVC will initiate next steps once their priority date becomes current (or is expected to become current in the coming months). Once the NVC issues the invoice to initiate immigrant visa processing, the applicant will have one year to pay the fee and proceed with next steps.
3. Once the visa fee is paid, the NVC will forward an instruction packet for the applicant to complete an online Form DS-260 Immigrant Visa Application and submit initial documents.
4. Applicant submits the applicable Civil Documents to the consulate — Birth Certificate, Police Certificates, Photocopy of Passport ID page, Photographs, and any Marriage or Divorce Certificates, Court/Prison Records, Deportation Documents, Military Records, Petitioner Documents, and Adoption documentation.
5. Once the online Form DS-260 has been completed and all applicable documents submitted, the NVC forwards the application to the U.S. consulate in the applicant’s home country.
6. The consulate sends the applicant further instruction, including information on the required medical exam, and schedules an in-person interview. The medical exam must be completed overseas with a physician on the consular list, requirements may vary by country.
7. The applicant (and any dependents applying with them) attends an in-person interview at the U.S. consulate in their home country.
8. If the consulate approves the application for an immigrant visa, the applicant and any dependents are given the necessary paperwork to present upon entry into the United States.
9. The applicant becomes a U.S. Permanent Resident upon entry to the U.S. using the immigrant visa, and CBP stamps the passport with a temporary “green card stamp”.
10. USCIS takes additional photos and fingerprints for production of the final green card.
11. USCIS mails the U.S. Permanent Resident Card to the applicant, typically within 30 days of entry into the United States.

Comparison Chart for AOS and Consular Processing of Immigrant Visa

Changing Green Card Processing Election:

The decision to process the green card by filing an adjustment of status with USCIS or consular processing an immigrant visa at a U.S. consulate abroad, which is determined on the Form I-140, can be changed after the filing of the I-140 petition. However, the process and impact of changing this election after the fact depends on the initial election.

If the applicant chooses Adjustment of Status on the I-140 and later decides to Consular Process, they must file Form I-824 with USCIS to request the transfer of their file to the NVC. There is a fee associated with this filing and it can take months to process.

If the applicant chooses Consular Processing on the I-140 and later decides to adjust status, the I-485 Adjustment of Status can be filed with USCIS without any additional procedural steps, aside from notifying the NVC or consulate that the applicant has decided to file an I-485 application instead. The impact of switching from consular processing to an AOS is generally fairly minimal in comparison to the delays associated with the reverse scenario, especially if the I-485 is filed before any steps are taken to initiate immigrant visa processing with the NVC.