Employer‐​sponsored Green Card processing delays cross the 3‑Year threshold

Immigrant workers seeking a green card—which denotes legal permanent residence in the United States—now face more than a three‐​year wait to make it through the government’s regulatory morass. Paying a $2,500 fee could cut this wait to “only” 2 years and 5 months. The government has added nearly 16 months to the average green card process since 2016, with more than a year added in 2021 and 2022 alone. These processing delays come on top of the time to wait for a green card cap slot to become available under the annual limits (which can be many years). They also do not include the time spent to comply with regulations prior to the first filing step. This prefiling period can take months.

Total green card processing times

• • 2022 Regular Processing Time: 1,171 days, 39 months, 3.2 years
    • If paying the $2,500 premium processing fee: 862 days, 29 months, 2.4 years
  • 2016 Regular Processing Time: 705 days, 23 months, 1.9 years
    • If paying the $2,500 premium processing fee: 567 days, 19 months, 1.6 years

Most employer‐​sponsored immigrants pass through a six‐​part series of bureaucratic steps. Employers must initiate the process, but the employee must participate in each stage.

1. Prefiling stage: This stage requires the applicant and employer to gather the necessary documents to prove their eligibility for a green card. This includes proof of degrees, the employer’s ability to pay, and work experience letters. These letters must contain detailed information from the employee’s job duties and tenure, and there is no particular reason why a past employer would want to provide this information.
   • 2022 Time: The public has effectively no information about how long this stage will take. Attorneys say that it could take anywhere from a few weeks to several months.
2. Prevailing wage determination: The Department of Labor evaluates the job duties, skill requirements, and location of the job to assign a specific occupational classification, skill level, and area code. Based on these factors, DOL uses its Online Wage Library to issue a prevailing wage determination. The average wait for the prevailing wage has nearly tripled since 2016.
   • 2022 Time: 182 days, 6 months
   • 2016 Time: 76 days, 2.5 months

3. U.S. Worker Recruitment: Under DOL regulations, employers must also recruit U.S. workers through a specified process that involves multiple newspaper advertisements. They must conduct interviews of applicants if their resumés meet the “basic” criteria, even if they do not meet all the criteria.
   • 2022 Time: 149 days, 5 months (from the prevailing wage determination)
   • 2016 Time: 131 days, 4 months

4. Labor certification: Employers must then apply for a labor certification from the DOL, which will certify that no “minimally” qualified U.S. worker responded to the job advertisements and that the employer did the required steps.
   • 2022 Time: 213 days, 7 months
   • 2016 Time: 180 days, 6 months

5. Employer petition: Employers must then file a petition with the Department of Homeland Security (DHS). DHS will verify that the worker is qualified for sponsorship and confirm the employer’s ability to pay. This is one of the few procedures where employers can pay to skip the waiting. The regulations allow an employer to pay a $2,500 fee (compared to $700 normally) to receive a response in 15 days (unless the government wants additional information).
   • 2022 Time: 324 days, 11 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee
   • 2016 Time: 180 days, 6 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee

Here is where the employee would wait for a cap number to become available under the annual limits.

6. Green card application: The green card application (Form I‑485) is the request for the employee to adjust status (usually from a temporary work visa status) to legal permanent residence. The worker must undergo a background check, medical screening, and confirm that the original job offer still exists.
   • 2022 Time: 303 days, 10 months
   • 2016 Time: 165 days, 5.5 months

The process is leading to massive processing backlogs in the employer‐​sponsored immigration system. Again, these processing backlogs are in addition to the backlog of workers waiting for a cap spot to become available. We don’t know how many people are going through the recruitment stage, but the total employer‐​sponsored processing backlogs at the Department of Labor and the Department of Homeland Security have more than doubled since 2016.

With a process this long, it is no surprise that well over 90 percent of immigrants must already be in the United States to obtain employer sponsorship. These delays create a de facto requirement for employees to use an H‑1B or other temporary work visa before they can access a green card. In other words, the true government processing time is much longer when you factor in the time it takes to obtain a temporary work visa before an employer begins the green card process.

Sadly, the Department of Labor is gearing up to finalize a rule very soon that, among other problems, will take more resources away from processing prevailing wage applications. It is also planning to release another rule that will directly complicate prevailing wage determinations for green cards and H‑1B visas. This is the exact opposite of what the government should be doing to alleviate the processing delays in the employer‐​sponsored immigration system.

Indeed, all these procedures are wholly unnecessary. Employees with a green card can negotiate fairly for wages since they can leave to find another employer. There is no reason to require U.S. worker recruitment since immigrant workers create an equivalent demand for U.S. workers elsewhere in the economy. Employers can judge a worker’s qualifications better than a government entity. Requiring health screenings and background checks of workers who were already screened abroad and who are now living in the United States for years is just absurd.

America will lose the global competition for talent when other countries grant green cards in a matter of a few weeks or months, not years. It’s time for the U.S. government to radically streamline its immigration system and eliminate unnecessary burdensome procedures.

(This article first appeared on Cato.org July 7, 2022)