Get Started: Why Delaying the Immigration Process Can Cost You

By Emily Neumann

“The secret of success in life is for a man to be ready for his opportunity when it comes.” 

~Benjamin Disraeli 

HOUSTON: Sometimes in Immigration, timing is everything. But if you are not prepared when the time is right, you could miss a once-in-a-career opportunity. July 1, 2007 is a perfect example.

The process for obtaining permanent residence based on employment in most cases is comprised of three phases: (1) Labor Certification – ETA Form 9089; (2) Visa Petition – Form I-140 Immigrant Petition; and (3) Application for Permanent Residence – Form I-485 Application to Adjust Status. Step 2 cannot begin until an approved Labor Certification is received. Step 3 can only be filed when an Immigrant Visa becomes available based on the applicant’s preference category and country of birth. The U.S. Department of State publishes the Visa Bulletin each month informing applicants when they are eligible to file the third and final step.

Typically the various preference categories can be backlogged by years, but on July 1, 2007, the bottleneck in employment-based immigrant visas was lifted, and any individual with an approved Labor Certification was eligible to finally file both the second and third steps in the green card process. The following day, the U.S. Department of State announced that no further employment-based applications would be accepted. Since that day, some categories are still subject to a ten-year wait.

Those who did not possess an approved Labor Certification in 2007 have been waiting to complete the green card process for almost six years, and the line for those waiting continues to grow. Those that were able to file on that one day have many advantages now. They have work authorization (EAD), they can travel without a visa stamp (AP), and they can more easily switch employers under a provision called AC-21. These benefits are available because the individuals were ready when opportunity knocked.

For a person in the U.S. on a work visa, such as the H-1B visa, it is a smart idea to start the employment-based green card process as soon as the employer is willing to begin. First, in most cases the H-1B six year limit cannot be exceeded unless a Labor Certification has been filed before the end of the fifth year. Second, it is helpful to allow enough time for both the Labor Certification and I-140 Immigrant Petition to be approved before the six year limit is reached. This will allow the H-1B to be extended for an additional three years instead of only one year. Third, denials happen. If the process is started early enough, a denial will not be fatal. Whereas, a denial when the six-year limit is near can mean that the H-1B cannot be extended and leaving the country may be the only option.

With the talks of immigration reform heating up, it is even more important to be ready by starting the Labor Certification process. If the current Senate bill becomes law, the backlog may soon be lifted. But only those with an approved Labor Certification will be ready to seize the opportunity.

Emily Neumann has practiced immigration law in Texas since 2005, representing both employers and immigrants. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news. She is a partner in Reddy & Neumann, P.C. in Houston and Dallas.