INA 203(g) cancellation and DoL processing times

The Department of Labor is currently taking 4–5 months to process prevailing wage determination requests and 3–4 months to process permanent labor certifications. See here.

A few years ago, prevailing wage determinations only used to take about 6 weeks.

This increase in processing times has created an obscure possibility for me and other employment-based green card applicants to lose their place in line.

Because of my position in the queue, I’ll become eligible to apply for a green card in about 1.5 to 2 years from now. Once I become eligible, I have a 12 month deadline to file the final form (Form I-485) to apply for a green card. Due to INA 203(g) (8 USC §1153(g)), if I fail to file within this deadline, then I go to the back of the line and will probably have to wait another 3 years or so before I can file again.

Those of you who have gone through, or are going through the employment-based immigration process have probably already figured out why this is dangerous. For others, read on.

At the time of filing Form I-485, I have to have the intent to work for my sponsoring employer—the one that filed all the paperwork with the Department of Labor. Technically, I don’t have to be working for them when the form is filed, but they must be offering me either new or continuing employment in order for the I-485 to be approvable. So what happens if I’ve filed my I-485, it sits in a queue with USCIS for a few months, and then I get fired? The I-485 is effectively abandoned, and I have to find a new employer who has to file the same forms with the Department of Labor as the old employer did. And that’ll take another 7–9 months.

During that 7–9 month period, I won’t be able to file Form I-485. It will only be possible to file it after the DoL has approved all of the new employer’s paperwork. What this means is that while all this is happening, my 12 month clock may run out. Example: if Form I-485 has been pending for 5 months and my current employer fires me, then I have about 7 months left on the clock before USCIS says: hey, it’s been an entire year since the last time you applied for a green card even though you’ve been at the front of the line the whole time. So we’re sending you to the back of the line. See ya!

This analysis depends on a rather pessimistic interpretation of INA 203(g). In particular, you might wonder whether the 12 month clock should start over at the point at which I get fired, causing my I-485 to be abandoned. Let’s say this is the case. Then the 7–9 month processing time doesn’t seem as dangerous. But 3–5 months is not a lot of slack. It takes time to find a new job, to gather experience letters from previous co-workers, and for attorneys to draft the required forms. Furthermore, the Department of Labor sometimes randomly decides to audit permanent labor certification applications, adding an extra 3 months, in which case the total processing time becomes 10–12 months. In that case, it’s almost certain that the 12 month clock would run out during the time when paperwork is pending with DoL.

There is one safeguard against this possibility. If my I-485 has been pending for at least 180 days before I leave my employer, then the new employer doesn’t need to file any paperwork, so it’s all good. However, if I get fired within the first 180 days, then I’m possibly screwed. In the past, there would probably have been enough time to go through all the paperwork with the new employer. But given current processing times, there may not be.

Processing times are not likely to decrease in the next few years (particularly as I don’t especially trust the Democrats to nominate someone who can actually beat Trump in 2020), and the chances of Congress passing a fix to this situation—say, by extending the deadline in INA 203(g) from 12 months to 24 months—are virtually zero, because this issue is simply too obscure. If there is any legislative fix, it will have to come as part of a comprehensive immigration reform package—and don’t hold your breath for that either.

But hey, it’s not the end of the world. If it takes an extra 3 years to get my green card, at least I’m still working and getting paid during that time. Unless, of course, the Trump administration has made it virtually impossible to get H-1Bs by then. If that’s the case, I’d better hope to be married to an American by then…

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