Green Cards take how long?

June 23, 2008 5:39 PM

My sister has been living and working in the US for years. She applied for her Green Card in 2003 - she's still waiting, along with a group of workmates who applied at the same time. She believes she has no recourse. Is this true?

Sis is pretty ready to give up. Apparently she and the coworkers applied at a bad time administratively and politically and a whole bunch of applications got stuck in the system. Coupled with not-so great lawyers (replaced with more not-so great lawyers by the employer). She says there's no point in getting more lawyers as the application is already out of the lawyers' hands. If the lawyers ask for a status report from the department, the respond will just be "pending", so there's no point, she says. Her wait seems indefinite.

Is this really the way it works? Five years and counting? You can't even check to see where you are in the queue? It seems insane to me. What, if anything, can be done?

posted by mooza to law & government (15 comments total)

What I've heard about cases like this is to get the attention of your congressman. Apparently a letter from that person can go a really long way. It's not anything ridiculous to do, either - ask your lawyer about it.

Also, consider getting another lawyer again. A good friend of mine has been in your sister's situation for much, much, much longer (really) and things really started happening when she got a good lawyer.

Sorry I can't be of more assistance, but I had to mention the congressperson thing.
posted by redteam at 5:58 PM on June 23, 2008

she could always sue.
posted by thinkingwoman at 6:07 PM on June 23, 2008

I've heard of people suing for green cards that take too long, although I'm really sketchy on the details. I'm sure you'll be able to find some information about what recourse your sister has on visajourney.com
posted by ob at 6:10 PM on June 23, 2008

Ah, well that article that thinkingwoman links to deals with citizen petitions so suing may not be possible for green card applications but legal advice and a look through visajourney would be a good place to start. I should also say that you can check the status of your application online, but that system might not have been in place when your sister petitioned.
posted by ob at 6:13 PM on June 23, 2008

VisaJourney is focused on marriage-based visas, and while there are people there with general expertise, employment visas are a different kettle o'fish.

Here's some unofficial data on employment visa adjustment of status based upon user submissions. It doesn't date back to 2003, though you can see how backed up things were then, but to be waiting this long while still in the US raises questions. It really depends a lot on which visa your sister was on.

Nthing congresscritter and new lawyer: at least get another pair of trained eyes on all the paperwork associated with your sister's case.
posted by holgate at 6:49 PM on June 23, 2008

I know several people in the same situation. Apparently when they transitioned the system back in 2002/2003 they fell into a huge backlog and basically put everyone who applied back then at the back of the list. Every new application seems to get prioritized over the people from then.
posted by langeNU at 8:18 PM on June 23, 2008

I don't know what you mean by "applied for her green card" - did she file her labor certification (I-140) in 2003? Did she file for adjustment of status (I-485) in 2003? If the former, 5 years from labor certification filing to green card is totally normal and suing/visiting congress people is not advised. If the latter, then yeah go nuts.

I'll assume she is in the first situation, though. She could try to figure out where she stands in the green card process as follows. When your labor certification is approved, you get assigned a "priority date", which is the date that your labor certification was filed. The priority date determines when you get your green card. You can track the visa bulletins issued by the the department of state to see if her priority date is current for the given month. If her priority date is current, then she can either (a) file I-485 if she has not already done so or (b) get her green card real soon now if her I-485 is pending. New visa bulletins are issued every month. Priority dates do not march forward linearly, they go forwards and backwards ("retrogress").

A good lawyer can explain this all to you. Your sister should have copies of all of her case work (applications, receipt notices, approval notices), along with photocopies of her I-94s (she was copying those, right?), miscellaneous non-immigrant visa papers (such as H-1B approval notices, etc). If she doesn't have those copies, she should get them. Once she has the paperwork, she can take it to an attorney who can then advise her on the appropriate course of action.
posted by crazycanuck at 8:24 PM on June 23, 2008

IANAL, but I do have employment-based immigration experience. Ditto on contacting the Congresscritter. She could also try having her employer make an inquiry at the service center where her application is pending. That's worked for us a couple of times when it seems like an application is languishing somewhere - USCIS always comes back with "It's pending, now go away," but lo and behold the case suddenly starts moving forward. Don't contact the National Customer Service number - they are not very helpful, to say the least. If the lawyer has any kind of direct contact at the service center, they should try that.

It would also depend a LOT on the preference category she filed under and where she is from, as both of those elements determine where she falls in the visa retrogression. Check here for the most recent visa bulletin for more detailed info on where USCIS claims to be with the different preference categories. The archived bulletins are also helpful for some perspective.

Again, IANAL, and this is definitely not legal advice. She should contact another lawyer, but also realize that for some folks, it's just a Really. Long. Wait. Waiting since 2003 is NOT unusual in my experience.

Good luck!
posted by CrazyGabby at 8:33 PM on June 23, 2008

Hey everyone, she knows a long wait is not unusual, but seemed convinced there was nothing else to be done and would be stuck in limbo indefinitely, with no sense of progress.

The congressman thing is a good idea, I don't think that came up for her as an option.

langeNU, yes! that's exactly what happened to my sister. Isn't that effed up?

and crazycanuck, I don't know what all the labor certification you refer to is, but she was in the US for years working legally before she applied for the green card. It's not just her but a bunch of her workmates as well, and they all did their applications properly.
posted by mooza at 10:52 PM on June 23, 2008

The labor certification is the first part of the green card application process. This page has a rough description of the employment based green card process. This page is specific to their law firm (which by the way I do not recommend), but the procedure is very similar for employees everywhere dealing with their green cards.

Delays can be built into the process in many places, even if all parts of your application have been filed properly. If you change job locations or job titles, you may have to file a new labor certification or I-140. If your I-140 was not approved when you made that change, you have to abandon your petition and start over, without retaining the priority date from the original labor certification. USCIS can issue what are called "RFEs" requesting additional information to help them adjudicate your case, which must be responded to in a timely manner.

This entire process is entirely separate from coming to work in the US in the first place. What most people do is they come to the US to work on a non-immigrant visa (TN, H-1B, L1), work for a bit, then their employer kicks off the green card process by filing the labor certification, etc. The time that you worked in the US before you filed for the green card doesn't count in the green card line; the clock only starts ticking when the labor cert is filed.

I am waiting for my green card, as are a large number of my colleagues. We all had our applications filed properly. It's just that you can't be issued a green card if there are no visas available in your category. Many of my colleagues, especially those from India applying in the EB-3 category, have been waiting upwards of six or seven years for their priority dates to become current. It's a painful process and it sucks, I know.
posted by crazycanuck at 2:16 AM on June 24, 2008

sorry should be "a new labor certification AND I-140" above if you change your job. It's past my bedtime.
posted by crazycanuck at 2:19 AM on June 24, 2008

Anecdotally, a cousin of mine who has American friends (and friends who used to live in the States) told me that one of her friends who had applied for a green card waited for SEVEN years before she got it (she's since left the States). On the other hand, they have another friend who (more recently) got her papers sorted in less than two years.
posted by macdara at 4:10 AM on June 24, 2008

My husband was in the exact same position as your sister - lots of waiting (about four years) and unable to get any information (it was unbelievably frustrating). What turned the tide was a letter to both our congressperson and President Bush's office. We were both really surprised (and maybe it was a coincidence) but about two weeks after receiving a response from the President's office, he got the final paperwork. If you have questions, memail me.
posted by bluesky43 at 6:06 AM on June 24, 2008

crazycanuck - I see. Yes she's stuck on waiting on the I-140 (and is still with the same employer) it seems, proper paperwork and all since 2003. I think she's had particularly bad luck with timing with all this drama with changeovers between departments etc - my other sister applied a year later in 2004 and has had her GC for a couple years already.

It sounds just awful.

Thanks everyone.
posted by mooza at 5:45 AM on June 25, 2008

She must have filed her labor certification using RIR. The new PERM system is much faster. An attorney can withdraw her RIR application and refile using PERM without losing her priority date. cite1 cite2. PERMs are approved fast, usually within 90 days or so. Then when her priority date becomes current (probably by the end of this calendar year) she can get her green card. There is absolutely *no reason* to have an I-140 pending for years. (I-485 is different) This needs serious investigation.
posted by crazycanuck at 9:00 AM on June 27, 2008