When Should an Employer Start the Green Card Process for a Foreign Employee?

Hiring a talented foreign professional can solve an immediate workforce need. Retaining that employee for the long term, however, may require a different immigration strategy.



Many foreign employees begin working in the United States through temporary immigration classifications. If the employer eventually wants the employee to remain with the organization permanently, employment-based permanent residence—commonly called a Green Card—may become part of the conversation.

One of the most important questions for employers is when to begin that process.

There is no universal deadline that works for every employee. The appropriate timing can depend on the employee's current immigration status, Green Card category, country of chargeability, job duties, anticipated promotions, company plans, and other factors.

For employers that already know an international employee is likely to become a long-term member of the organization, waiting until temporary status is close to expiring can unnecessarily limit the company's options.

Should Employers Wait Until a Work Visa Is About to Expire?

Not necessarily.

A temporary work visa and an employment-based Green Card serve different purposes. Temporary status may allow an employee to work in the United States for a particular period, while permanent residence can provide a pathway for the employee to remain in the country indefinitely.

Some employment-based Green Card processes can take considerable time.

Depending on the case, the process may involve:

• A prevailing wage determination
• Recruitment
• PERM labor certification
• An immigrant petition
• Waiting for an immigrant visa number
• Adjustment of status or consular processing

Not every employment-based Green Card case requires every one of these steps, but employers should understand the potential timeline before deciding when to begin.

The better question is often not:

“How much time does this employee have left on the current visa?”

Instead, employers should ask:

“If we want this employee here long term, what steps should we be taking now?”

What Is an Employment-Based Green Card?

Employment-based permanent residence allows qualifying foreign nationals to become lawful permanent residents based on employment or other qualifying professional circumstances.

Employment-based immigrant visas are divided into preference categories.

Common categories include:

EB-1: Priority Workers

The EB-1 category can include certain individuals with extraordinary ability, outstanding professors and researchers, and qualifying multinational executives and managers.

Some EB-1 cases do not require PERM labor certification.

EB-2: Advanced Degree Professionals and Individuals of Exceptional Ability

EB-2 may apply to certain professionals holding advanced degrees or their equivalent and individuals who demonstrate exceptional ability.

Many employer-sponsored EB-2 cases require PERM labor certification, although certain cases may qualify for a National Interest Waiver.

EB-3: Skilled Workers, Professionals, and Other Workers

EB-3 can provide a pathway to permanent residence for qualifying skilled workers, professionals, and certain other workers.

Employer-sponsored EB-3 cases commonly involve the PERM labor certification process.

Determining the appropriate category early can help the company understand the steps and potential timeline involved.

When Is the Best Time to Start the Green Card Conversation?

Employers should consider long-term immigration planning once they have a reasonable basis to believe that a foreign employee may become an important long-term member of the organization.

That does not necessarily mean beginning a Green Card case on the employee's first day.

Instead, the employer may want to evaluate factors such as:

• The employee's performance and expected role
• Current immigration status
• Remaining time in temporary status
• Available extensions
• Green Card category
• Country of chargeability
• Visa availability
• Anticipated promotions
• Future worksite changes
• Planned corporate restructuring
• Whether the employee is expected to remain with the organization
• The company's broader retention strategy

For certain employees, starting earlier can provide more flexibility if unexpected delays arise.

Why Can the Green Card Process Take So Long?

There is not one government agency or one application responsible for every employment-based Green Card case.

Depending on the pathway, a case may involve the U.S. Department of Labor, U.S. Citizenship and Immigration Services, and the U.S. Department of State.

For a common PERM-based case, the general process may involve:

1. Defining the permanent position
2. Obtaining a prevailing wage determination
3. Conducting required recruitment
4. Filing a PERM labor certification application
5. Receiving certification from the Department of Labor
6. Filing Form I-140, Immigrant Petition for Alien Worker
7. Waiting for an immigrant visa number when necessary
8. Filing for adjustment of status or completing immigrant visa processing abroad

Each stage has its own requirements and timing considerations.

That is why employers should avoid treating permanent residence as a process that can always be completed quickly when an employee's temporary status is nearing its limit.

What Is PERM Labor Certification?

PERM is the permanent labor certification process administered by the U.S. Department of Labor.

In many EB-2 and EB-3 employer-sponsored cases, the employer generally must obtain permanent labor certification before filing the immigrant petition with USCIS.

The process is employer-driven.

The employer generally identifies a permanent full-time job opportunity and determines its actual minimum requirements and duties. A prevailing wage determination must then be obtained for the position.

The employer may also need to complete specific recruitment steps before filing the labor certification application.

The Department of Labor evaluates whether there are sufficient able, willing, qualified, and available U.S. workers for the job opportunity and whether employing the foreign worker would adversely affect the wages and working conditions of similarly employed U.S. workers.

Because PERM involves steps that occur before an immigrant petition can even be filed, employers considering this pathway should build sufficient time into their planning.

Why Does the Prevailing Wage Process Matter?

Before filing a PERM application, an employer generally must obtain a prevailing wage determination from the Department of Labor.

The prevailing wage is based on factors involving the occupation and area of intended employment.

The employer must be prepared to offer at least the applicable prevailing wage for the permanent position.

This can become particularly important when an employee is expected to receive a promotion or move into a substantially different role.

The company should evaluate the permanent position it actually expects the employee to occupy rather than beginning the process around a role that may soon become outdated.

Why Does the Employee's Country of Chargeability Matter?

Starting the Green Card process does not necessarily mean a Green Card will immediately become available once the underlying petition is approved.

Employment-based immigrant visas are subject to annual numerical limits and per-country limitations.

The Department of State publishes a monthly Visa Bulletin showing visa availability across employment-based preference categories and countries of chargeability.

Some categories may be current, while others can have significant backlogs.

As a result, two employees sponsored by the same company in similar positions may experience very different permanent residence timelines depending on their immigration categories and countries of chargeability.

This is another reason employers should evaluate long-term immigration strategy early.

What Is a Priority Date?

A priority date essentially establishes an employee's place in line for an immigrant visa in categories subject to numerical limitations.

For cases requiring PERM, the priority date is generally the date the Department of Labor receives the labor certification application.

For certain categories that do not require labor certification, the priority date is generally tied to the filing of the immigrant petition.

The employee's priority date is then compared with the dates published in the Department of State's monthly Visa Bulletin.

When visa demand exceeds the available supply, employees may need to wait until their priority dates become eligible under the applicable chart before progressing to particular stages of permanent residence.

Beginning the process earlier may therefore establish an earlier priority date in cases where a backlog exists.

Can Visa Availability Change?

Yes.

Visa Bulletin dates can move forward, remain unchanged, become unavailable, or move backward—a development commonly known as retrogression.

That means employers should be cautious about assuming today's visa availability will remain the same throughout an employee's Green Card process.

Immigration planning should account for the possibility that government processing times and visa availability may change.

Should an Employer Start PERM Before the Employee Is Promoted?

This requires careful planning.

A PERM case is based on a particular permanent job opportunity with defined duties and minimum requirements.

If the company already expects the employee's role to change substantially, beginning a case around a position that will soon no longer reflect the employee's anticipated permanent role may create complications.

Employers may want to consider:

• Whether a promotion is imminent
• How substantially the duties will change
• Whether the minimum requirements will change
• Whether compensation will change
• Whether the employee will move into management
• Whether the work location will change

HR, management, and immigration counsel should ideally coordinate before the company finalizes major employment changes involving an employee in the permanent residence process.

Can a Worksite Change Affect Green Card Planning?

Potentially.

The geographic location of a permanent position can be important in a PERM case because it may affect prevailing wage and recruitment requirements.

If the company anticipates relocating an employee, moving an office, or changing the employee's long-term work arrangement, those plans should be considered before the Green Card strategy is finalized.

Remote and hybrid work arrangements can make this analysis particularly important.

Employers should avoid assuming that an employee can simply move anywhere in the United States without considering whether the change affects an immigration process already underway.

What if the Company Is Planning a Merger or Acquisition?

Corporate transactions can also affect employment-based immigration.

If an employer anticipates a:

• Merger
• Acquisition
• Reorganization
• Sale of a business unit
• Change in corporate structure
• Transfer of employees between entities

the company should consider how the transaction could affect sponsored foreign employees and pending Green Card cases.

Questions may arise regarding which entity will employ the worker after closing, whether successor-in-interest principles apply, and how pending PERM applications or immigrant petitions should be handled.

For companies with international employees, immigration should be part of transaction planning and due diligence rather than an issue addressed only after closing.

Does Every Employee Need PERM?

No.

Although PERM is an important part of many employment-based Green Card cases, certain categories do not require labor certification.

Depending on the employee's background and circumstances, potential alternatives may include certain EB-1 classifications and other immigration pathways.

For example, qualifying multinational executives and managers may potentially pursue permanent residence through EB-1C without PERM labor certification.

Certain individuals may also qualify for other categories where the traditional employer-sponsored PERM process does not apply.

The appropriate strategy should therefore be determined before assuming every foreign employee must follow the same process.

How Does Green Card Sponsorship Help With Employee Retention?

For some organizations, permanent residence sponsorship can become an important component of retaining highly valued international employees.

An employee may have spent years developing:

• Institutional knowledge
• Customer relationships
• Technical skills
• Leadership responsibilities
• Proprietary knowledge
• Research capabilities
• Management experience

Losing that employee because long-term immigration planning began too late can create both operational and recruiting costs.

Companies competing for highly skilled international talent may therefore benefit from considering immigration planning alongside compensation, advancement opportunities, and other retention strategies.

Should Companies Have a Formal Green Card Sponsorship Policy?

Organizations that regularly employ foreign professionals may benefit from developing internal guidelines for permanent residence sponsorship.

A policy can address questions such as:

• When employees become eligible for sponsorship
• Which positions qualify
• Who approves sponsorship
• Whether performance or tenure requirements apply
• Which costs the company will cover
• How promotions are handled during the process
• What happens if the employee leaves
• How immigration cases are tracked
• Who within HR communicates with immigration counsel

A consistent process can help larger organizations manage cases more predictably while reducing uncertainty among employees and managers.

The policy should still allow room for circumstances that require individualized analysis.

What Should Employers Review Each Year?

Companies with sponsored foreign employees should not wait for an immigration deadline to review their workforce.

HR and leadership can periodically evaluate:

• Visa expiration dates
• Remaining periods of authorized status
• Employees approaching sponsorship eligibility
• Pending PERM cases
• Pending I-140 petitions
• Employees waiting for visa availability
• Upcoming promotions
• Worksite changes
• International travel
• Corporate transactions
• Employees the company considers important to retain

An annual or periodic immigration review can help identify upcoming issues while the company still has time to address them strategically.

How Early Is Too Early?

There is no universal answer.

Starting a Green Card process immediately may not make sense for every new hire. Employers may want time to evaluate performance, confirm the employee's long-term role, and determine whether permanent sponsorship aligns with the company's policies.

But waiting until temporary work authorization is nearing expiration can create a different kind of risk.

The appropriate point often lies somewhere between those extremes.

For key employees, the company can begin planning well before it decides to begin filing.

That distinction matters.

An early immigration strategy review does not obligate the employer to immediately sponsor the employee. It simply gives leadership a clearer understanding of the available pathways, timelines, and decisions that may be coming.

Think About the Employee's Career Path, Not Just Immigration Status

A strong Green Card strategy should reflect where the employee and company are headed.

Consider an employee who is currently an engineer but is expected to become an engineering manager within the next year.

Or an international executive who may soon transfer to another division.

Or a researcher whose accomplishments could eventually support a different employment-based immigration category.

The best strategy today may depend on what the employee's role is expected to look like tomorrow.

For that reason, immigration planning should involve communication among HR, management, the employee, and immigration counsel.

Permanent Residence Should Be Part of Long-Term Workforce Planning

Employers frequently focus on immigration when a deadline approaches:

A visa is expiring.

An employee needs an extension.

A promotion is about to occur.

A worksite is changing.

A merger is closing.

But companies with international talent can take a more strategic approach.

If leadership already knows that a foreign employee is important to the company's long-term plans, permanent residence can be evaluated well before temporary status becomes an urgent concern.

Early planning gives the company time to understand the appropriate immigration category, anticipated government processes, potential visa backlogs, career changes, and corporate developments that may affect the case.

Plan Ahead to Retain International Talent

There is no single date when every employer should begin the Green Card process for a foreign employee.

For some workers, the process may be relatively straightforward. Others may face multiple government stages, significant visa backlogs, or changing employment circumstances that require careful planning.

The key is to avoid treating permanent residence as a last-minute immigration filing.

Lacki & Company works with businesses, HR professionals, executives, and foreign-national employees on employment-based immigration strategies, including temporary work authorization and pathways to permanent residence.

For companies that rely on international talent, coordinating Green Card sponsorship with workforce planning can help protect valuable employee relationships while supporting the organization's long-term growth.

Contact Lacki & Company to discuss when your organization should begin planning permanent residence sponsorship for a valued foreign employee.