U.S. immigration law has always been challenging with ever-changing rules and policies and their far-reaching effects. However, the constant complication post-pandemic has been the unpredictability of processing times and their amazing lengths. Delays in consular appointments and adjudications within the United States (U.S.) complicate and disrupt the process and result in global quicksand versus mobility.
Today's snapshot of timing to acquire permanent residence via a test of the U.S. labor market (PERM) tied to a job offer requires a prevailing determination (PWD) normally to start from the Department of Labor (DOL). The approximate PWD processing time alone is currently a stunning one year. By the time the associated recruitment and DOL adjudication without audit are completed of the PERM application, approximately 270 days have been used up.1 We do experience processing times less than the twelve months noted, but with no predictability, unfortunately.
Then, the sponsoring employer (normal route) files an I-140 petition with U.S. Citizenship and Immigration Services (USCIS) and faces the next long queue2:
|I-140 EB Categories||Processing Time Estimates (80%) (Jan 2023) (N.B. processing times change frequently)|
|Extraordinary Ability E11||20 to 22 months|
|Outstanding Professor Researcher E12||12 to 13.5 months|
|Multinational Manager/Executive E13||12.5 to 13.5 months|
|Advanced Degree or Exceptional Ability E21||10 months|
|Skilled Worker/Professional (E31 and E32)||17.5 to 20 months|
|Unskilled Worker (EW3)||11 to 14.5 months|
|Advanced degree or exceptional ability requesting National Interest Waiver||16 to 19 months|
|Schedule A Nurses||11 to 13 months|
Processing times frequently vary, as noted, and are sometimes shorter than what is posted.or longer. The next considerations for continuing the application process with USCIS are to:
- File the I-485 adjustment application concurrently with the I-140 petition, if an immigrant visa number is available and it makes sense to file the I-140 petition with an I-485 adjustment application at the same time when possible;
- File the I-485 adjustment application separately because there is no immigrant visa number available as stated monthly in the Visa Bulletin published by the Department of State (DOS) or a concurrent filing is not advisable due to the facts; OR
- Elect consular processing to obtain an immigrant visa at a consular post abroad of the DOS due to, for example, travel concerns or possible processing improvements.
Of course, USCIS processing times for I-485 adjustment applications are also at incredible lengths in addition to long wait times for consular immigrant visa processing abroad. It is a constant and changing analysis as to the most time effective options to achieve permanent residence. At the moment, the posted processing times by USCIS for an employment based I-485 adjustment application range from around 20 to 50 months. Some examples are:
|I-485 Employment Based||Processing Time 80% cases|
|California Service Center||29 months|
|Nebraska Service Center||22 months|
|Texas Service Center||50.5 months|
|Atlanta, GA||22 months|
|Chicago, IL||21.5 months|
|Dallas, TX||21.5 months|
|Columbus, OH||20.5 months|
|Las Vegas, NV||21 months|
|Orlando, FL||20.5 months|
Key Survival Points to Remember in Facing Homeric Delays in Employment-Based Permanent Residence Processing
In this challenging time of delays, applicants have to be able to eat, do burpees, perform surgery, and play an instrument at the same time to keep track of options to remain in nonimmigrant status, be able to engage in international travel, not violate status, and to continue to be work authorized. Numerous policy changes are providing some flexibility regarding processing times, grace periods, and automatic extensions of work authorization, among others, to consider. In addition, some changes have developed from extensive litigation efforts. Some key points of note below:
- On January 30, 2023, USCIS will commence its final phase in expanding the availability of premium processing of certain I-140 petitions, including all pending E13 multinational executive/manager petitions and E21 NIW petitions, as well as all initial multinational executive/manager petitions and E21 NIW petitions. It is important to remember that the $2500 premium processing fee for E13 and E2 NIW I-140 cases allows a 45 days processing time "after all prerequisites are met."
- In March of 2023, USCIS will expand premium processing to certain F-1 students seeking Optional Practical Training (OPT) as well as those seeking STEM OPT extensions, who have a pending Form I-765, Application for Employment Authorization.
- In April of 2023, USCIS plans to expand premium processing to F-1 students seeking OPT, and those seeking STEM OPT extensions, who are filing an initial Form I-765.
- USCIS intends to expand premium processing to the I-539 Application to Extend/Change Nonimmigrant Status, which will be a relief to dependents of work-authorized nonimmigrants.
- In May, USCIS may expand premium processing to certain F students and J exchange visitors with pending I-539 applications.
- In June, USCIS may also expand premium processing to certain F students and J exchange visitors who are filing an initial I-539 application.
(USCIS also indicated in its news release that expanding premium processing will not increase processing times for benefit requests not designated for premium processing or increase the regular processing times applicable to benefit requests qualifying for premium processing.
Note: On January 20, 2023, USCIS reached a settlement in Edakunni v. Mayorkas in which it agreed as of January 25, 2023, to link the adjudication of I-539 and I-765 applications for H-4 and L-2 derivatives with an underlying related I-129 petition for the principal nonimmigrant, if filed together. This settlement provides essential relief from lengthy processing for such derivatives without consideration of premium processing expansion options.
- Those E-2, H-1B, H-1B1, L-1, or O-1 nonimmigrants with an approved I-140 may be eligible for a compelling circumstances EAD valid for up to one year if they do not have an immigrant visa number available based on the Visa Bulletin and face "compelling circumstances." This relief option addresses certain challenging circumstances, including those that previously may have forced individuals seeking lawful permanent residence to abruptly stop working and leave the U.S.
- Consider an expedite request based on an emergency, humanitarian reasons, or severe financial loss to a company or person provided the application for the benefit was filed timely or that the reply to a request for evidence (RFE) was submitted timely.
- Review the use of the 60 day discretionary grace period to seek a new employer-sponsored nonimmigrant status or work eligibility as the dependent of a spouse (e.g., L-2, E-1, E-2, H-4 in some cases, etc.). Note E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN nonimmigrants and their dependents may be considered to maintain status following the end of employment of the principal nonimmigrant for up to 60 consecutive calendar days OR until the end of the authorized nonimmigrant status, whichever is shorter. See 8 CFR §214.1(l)(2).
- Consider the recapture of days (24 hours) outside of the U.S. as to the use of the full validity period in nonimmigrant categories for capped consecutive periods of authorized stay, as applicable.
- Always review alternative paths to a permanent residence, including family-based as well as paths to permanent residence, which skip the PERM labor market test and PWD when possible. (e.g. EB1 or EB2 NIW for example) In addition, make sure to remember the STEM graduate and entrepreneur clarifications provided by USCIS as to EB2 NIW qualifications.
- Consider downgrading or upgrading the I-140 category tied to the information published in the Visa Bulletin. In addition, consider portability options post-filing the I-485 to self-employment or to a new employer, when applicable.
Expect to address ongoing change in 2023 to analyze this processing conundrum. The best counsel is to make sure you have a trusted legal expert helping you steer the course. Please consider contacting your congressional representative or senator about these delays and their consequences.
1. See Bier, David J., "Labor Dept's Immigration Backlog Continues Shocking Increases," published by the Cato Institute (December 15, 2022).
2. See Bier, David J.,"USCIS's Immigration Backlogs Hit 8.8 Million," published by the Cato Institute (November 7, 2022).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.