An immigrant that has come into the United States and has been granted rights for working and living permanently in the U.S. becomes a permanent resident and receives what is referred to as a “green card.” Delays in the green card process, whether due to the applicant’s unfamiliarity with immigration law and procedures, or the immigration bureaucracy moving slowly, or built-in delays such as annual numerical limits on the number of visas that can be issued in many categories, are the most common complaints from many immigrants.
There are different ways for an immigrant to become a permanent resident and get a green card. Most typically, a family member who is a U.S. citizen or a permanent resident can petition for (“sponsor”) you, or a U.S. employer can petition for (“sponsor”) you. People also get green cards through asylum, through the diversity visa “lottery” selection, through investment, and through special programs including protection for someone who has been battered or abused by his or her U.S. citizen or permanent resident spouse.
The major steps in obtaining a green card vary, as does the timing, depending upon many factors. These include whether the visa is in the family category or in the employment category, and whether you are in the U.S. and entered lawfully or whether you still reside in another country. Sometimes visa waits depend upon your country of citizenship. This article is a brief and general overview of the steps and timing involved in family-based green cards, and certain employer-based green cards.
Step One: Petition
If you have a family member who is willing to “petition” for you, that is the first step. “Petitioning” means that your family member must begin the process of contacting the immigration agency (U.S. Citizenship and Immigration Services, or USCIS) with specific application forms, documents and records proving the family relationship. Only certain family relationships qualify. Depending upon which relationship applies to you will also determine how long you have to wait to get an immigrant visa / green card. You must be among the following:
- a mother or father of an adult U.S. citizen who is 21 years of age or older;
- a husband or wife of a U.S. citizen;
- a husband or wife of a permanent resident;
- under 21 year old child of a U.S. citizen;
- under 21 year old child of a permanent resident;
- over 21 year old unmarried son or daughter of a U.S. citizen;
- over 21 year old unmarried son or daughter of a permanent resident;
- over 21 year old married son or daughter of a U.S. citizen;
- brother or sister of an adult U.S. citizen who is 21 years if age of older.
USCIS’ processing time has varied historically, but expect to wait six months to a year until the agency makes their decision. That is the typical time frame. If there is a delay (either because certain evidence is missing, or there is a mistake on the forms, or USCIS gets backlogged, or you had some immigration problem in the past), this first step may take more than a year.
Step Two: Visa Availability
The timing of when you can proceed with this next step depends upon many factors:
- whether you are living in the U.S. or still living elsewhere
- whether you entered the U.S. lawfully with a visa/passport (for example as a visitor, or student, or worker)
- which family member petitioned for you (known as the “preference category”)
Unless you are the husband or wife of a U.S. citizen, or the parent of an adult (over 21) U.S. citizen, you will have to wait, likely several years, for your “priority date” before you can apply for your visa. There are annual limits to the number of visas that can be issued. Depending upon your family relationship and your country of citizenship, your wait may be 5 years, or it may be 20. People from countries with the greatest number of applicants have persistent backlogs. This means ten to twenty year waits in many categories for citizens of Mexico, the Philippines, China and India.
Step Three: Green Card Filing
If you are in the U.S., entered with a passport or border crossing card, and your family member is your U.S. citizen husband, wife, or U.S. citizen adult (over 21) son or daughter, you may be able to remain in the U.S. and file your application at the same time your family member petitions for you. This process is referred to as “adjustment of status.” In these cases, the time from when USCIS gets the properly completed applications until the time that you get your green card interview typically takes about a year.
If you are outside the U.S. your visa application must go through the U.S. Department of State. This is referred to as “consular processing.” First, you must wait until USCIS approves your family member’s petition (Step One). How quickly you may file your visa application depends upon your family category. Where you are the husband or wife of a U.S. citizen, or the parent of an adult (over 21) U.S. citizen, you may submit your State Department visa application right after the petition approval. If you are in any of the other family categories, you must wait for the visa’s “priority date” availability. Regardless of category, when you finally apply through the State Department it typically takes several months from the time you file the application until the time you are scheduled for your interview.
Step One: Labor Certification
There are several categories of employment-based visas and green cards. Most require a three-part process, beginning with the sponsoring employer’s application known as the PERM labor certification, made to the U.S. Department of Labor. The PERM process typically takes four to six months before the employer is ready to submit the application to the Labor Department because there are many complex requirements involving job qualifications, requirements, duties, salary, advertising and recruitment. The PERM process must ultimately demonstrate the employer’s inability to find a qualified U.S. worker available and willing to do the job. The Labor Department’s processing time has varied historically, but is presently taking about two months to make a decision if there is no audit. An audit can add another three or four months until there is a decision.
Step Two: Petition
An employer who has obtained the labor certification (Step One) may petition USCIS to seek to hire you. The petition’s purpose is to inform USCIS about the employer and the offered job, and to show how you meet the job’s requirements as described in the labor certification. USCIS’s decision-making time is related to the volume of cases it receives, and currently is taking four to five months if there are no delays caused by missing evidence or incorrectly completed applications. Certain employment petitions are eligible for USCIS’s “Premium Processing” service. For an additional fee, USCIS will decide the petition within 15 days of its receipt.
Step Three: Visa Availability
As with family-based cases, there are various employment-based green card “preference categories,” the most typical of which are skilled workers, professionals, and advance-degree professions. These terms have very specific meaning and definitions under the immigration laws. There are annual limits on the number of visas that can be issued in each employment category. People from countries with the greatest number of applicants have persistent backlogs. Citizens of India, China and the Philippines have about a 10-year visa wait. For citizens of other countries, whether and for how long you will wait for your visa historically varies. Presently, other than for citizens of India, China and the Philippines, most categories have visas currently available, or a wait of only a few months.
Step Four: Green Card Filing
If you are in the U.S., came in lawfully, have avoided certain immigration violations while you have been here, you may be able to remain in the U.S. and file your application at the same time your employer petitions for you. This type of green card application is known as “adjustment of status.” In these cases, the time from when USCIS gets the properly completed applications until the time that you get your green card typically takes less than six months.
If you are outside the U.S. your visa application must go through the U.S. Department of State. This is referred to as “consular processing.” You must wait until USCIS approves your employer’s petition (Step Two). How quickly you may file your visa application depends upon your employment category and your country of citizenship, discussed in Step Three. You can expect from several weeks to a couple of months from the time you file the State Department application until the time you are scheduled for your interview at the U.S. embassy or consulate in your country.
The green card process is complicated, time-consuming and fact-sensitive. Lynn Olinger, a Board-Certified immigration attorney, has extensive experience to properly plan and prepare your case. By analyzing and understanding the particulars of your situation, Olinger Law can provide guidance and representation most likely to obtain your green card without undue frustration and delay.