How to obtain green cards for your workers

Molly John details the process she took to help her H-2B employees become permanent residents.

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January 8, 2019

Molly John, co-owner and CEO of MJ Design Associates in Columbus, Ohio, took on the difficult task of securing green cards for her H-2B workers. Here’s an overview of the steps she took:

Step one: Complete a prevailing wage filing. Send a request to the Department of Labor stating the job you are looking to fill. Provide the DOL with a job description for the position – keep it simple. The DOL will reply with the minimum prevailing wage rate you must pay for the position as a yearly salary total, which is then used in the next step. For this first step takes one to three months to hear back from the DOL.

Step two: Advertise for jobs. You must show the DOL that you have attempted to fill the position with local or domestic workers. The post must be up internally in your office for 14 days as well as on job recruiting websites for 60 days. Show the DOL that you have tried various avenues to recruit, such as job fairs, websites or job and family services offices. Job advertising might cost $1,000 to $1,500. The recruiting period takes three to six months.

Step three: Obtain PERM labor certification. Once you have completed the recruiting period, you can then proceed with an official filing for labor certification for a specific foreign worker. You can provide a name now or it can be added later. Your company will open an electronic portal with the DOL and will need to provide proof of federal employer identification number, proof of business entity and proof of physical location. The foreign worker completes a PERM questionnaire, which an attorney will use to complete the application. Then, the DOL might perform an audit and ask additional questions. The attorney will create an audit file for each candidate, which must be saved throughout the entire application process. For this step, everything must be paid for by you as the employer. The PERM application is free, but the attorney fees cost $1,000-$1,500 per foreign worker applicant. This step takes five to seven months to receive certifications from the DOL.

Step four: File with U.S. Citizenship and Immigration Service (USCIS) for a visa. Complete a Form I-140 visa petition for each candidate in which you are sponsoring. You as the employer must present tax returns; quarterly tax statement from OBES; financial summary; signed contracts from clients showing you have work available including year-round work; and company brochures and any marketing materials. When filing this petition, be sure an attorney checks the box that the applicant may file their official green card application outside the U.S. through a consulate. This provides some flexibility for the next step, and it can reduce the amount of time it takes to move a petition between government agencies. Your attorney should understand this. Fees for this step can be paid for by either the foreign worker applicant or the employer. The government filing fee costs $750 per applicant, attorney fees cost $500-$800 per applicant and premium processing costs $1,225 per applicant. While premium processing isn’t required, it’s recommended to speed up the filing process by eight months. This step takes 1-2 months for the USCIS to acknowledge receipt of application, then it takes 5-12 months for the USCIS to approve the visa petition.

Step five: File for a green card. There are a limited number of green cards distributed per year, and it is based on country of origin. Currently, wait times to get green cards for Mexican workers is between 1-2 months. There are two options to petition for status adjustment, either within the U.S. or in their home country via the U.S. consulate. Wait times and fees are factors to consider when deciding which process makes the most sense.

  • Filing in the U.S.: There are three forms that are filed at the same time – petition for adjusted status, advance parole document and employer authorization document. Each form serves a different purpose and helps allow the employee to stay in the U.S. legally, even after their H-2B visa expires, and it also allows them to travel back to their home country to visit.
    a. Form I-131 – Advance parole document, or travel document. This application allows the employee, once approved, to travel outside the U.S. with this document. When they do return, they will receive a new I-94 card, stamped with different dates and instructions. Once you receive the notice from USCIS that they have received this application, the applicant cannot travel outside the U.S. If so, the application will be denied, and they will have to file a new Form I-131. If this does happen, they can still be approved, but it delays the process another 4 to 6 months. With Form I-131, USCIS will acknowledge receipt of the application in about four weeks from the date mailed. USCIS will request for fingerprinting at a local office within about 1-2 months. Final approval notice and the card can arrive anywhere from 60 days to 6 months.
    b. Form I-765 – Employment authorization document (EAD). This application allows the employee to continue working legally in the United States. This can be filed with the I-131 and ultimately will be on the same card when approved. The USCIS will acknowledge receipt of application in about four weeks from the date mailed. USCIS will request for fingerprinting at a local office within about one to two months. The final approval notice and the card can arrive anywhere from 60 days to six months.
    c. Form I-485 – Petition for adjustment of status within the United States (official green card application). All information is filed together with the application. This includes: a letter of support from the employer; a detailed questionnaire about personal and family history; three recent pay stubs; applicant’s prior USCIS approval notice (I-140); applicant’s current I-94 card; applicant’s birth certificate with translation; applicant’s passport and all visa stamps; two passport-style photos; applicant’s medical exam, which must be approved by a USCIS physician; fingerprinting; USCIS may issue a request for evidence for additional information; and a formal interview at the end of the process with a local USCIS office. The final interview lasts 15 minutes, and an attorney and interpreter must be present. At the end of the interview, they will let you know if additional work is needed to complete the application and the interviewer will submit his recommendation that it’s approved. This part includes a $1,225 USCIS filing fee per applicant; $300-$600 for doctor’s visits per applicant; and $500-$800 in attorney fees per applicant. This part takes three to four weeks for USCIS to respond with a receipt of notice. After that receipt of notice, it’s an 11-month period before the notice is sent regarding interviews. After the interview, it could take anywhere between 1 day and 3 months for final approval.

     

  • Filing outside the U.S. – To file outside the U.S., employers need to petition for adjustment of status at a foreign U.S. consulate.
    a. File form I-216 – Complete this with USCIS with a detailed questionnaire about personal and family history. USCIS will then reach out to the petitioner (the foreign worker applicant) in their home country. They will tell the worker they need to report to the consulate within 45-90 days. Mexico only has one consulate that processes green cards, which is located in Ciudad Juarez near El Paso, Texas. The USCIS will also inform them where to get their medical exam.
    b. Report to the consulate – The applicant will be interviewed and must present the following documents: letter of support from the employer reaffirming the letter of support from the I-140 package, passport, two passport-style photos, birth certificate, marriage certificate (for spouse), police certificate from the local police prescient where the applicant lives in Mexico. After two to three days, the applicant will leave the consulate with a temporary green card. This process includes a $338 application fee, an $88 affidavit fee, the cost of a medical exam in their home country and the employee costs to travel to Ciudad Juarez. With this step, USCIS files will be completed online and the applicant will receive a confirmation number. It can take up to four months for them to assign a visa and reach out to the applicant to tell them when to report to the consulate. Once at the consulate, the process takes about three days until the applicant receives a temporary green card and travel documents. Then, the applicant must travel to the U.S. within three to six months. Once the applicant crosses the border, USCIS will ask for a U.S. address to send the official card.