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Last Updated On: February 29, 2024 | Published On: February 29, 2024
The H-1B visa is especially popular because it is considered “dual intent” which means the visa holder can not only enter the U.S. but also seek lawful permanent resident status (green card status). In this guide, you’ll learn the H1B to green card process including steps for the best chances of approval.
Some visa categories only allow renewal for the same status, while some only permit changing to another temporary status. For some visas, there are no options for renewal or changing of status as those in those categories will need to return to their country of origin upon expiration of their status. This is one of the superior advantages the H-1B Visa has over most other nonimmigrant U.S. visas.
Individuals under H-1B or L-1 status are frequently eligible to apply for a green card for the right to live and work permanently in the United States. This process is known as adjustment of status. Obtaining an employment-based green card consists of multiple steps and a specific application process. As a foreign worker on a temporary status like H-1B, you may be exploring your options as your status approaches its expiration date. Going through the employment-based green card process while under H-1B status has many benefits, especially if you have an approved I-140.
The process of achieving a green card if you are on an H-1B visa is as follows:
However, before you start it is crucial to understand a few crucial points:
Adjustment of Status: Submit an I-485 USCIS to adjust your status from H-1B to green card (lawful permanent resident) status. Foreign nationals are able to request an extension of their H-1B status in one-year increments if their Labor Certification or I-140 was filed a year (365 days) prior to the beginning of their exemption from the normal 6-year limit (this takes into account any recaptured time abroad).
If Priority Date Is Not Current: The exception is if you have an approved I-140 and your priority date is not current (or if your LCA has been pending for a year). In those circumstances, you will have unlimited extensions until you can complete your green card application process. You can determine your priority date by looking on the I-797 sent to you from USCIS approving your I-130.
Maintaining Status While Green Card is Processing: It’s crucial for the foreign worker to maintain lawful immigration status while in the green card process or making the change from H-1B to Green Card (EB-2/EB-3). In order to do so, you must submit an I-485 petition to USCIS–this generally occurs after the USCIS has already approved your employer’s I-140. In some instances, concurrent filing may be selected which permits both the I-485 and I-140 petition to be submitted at the same time.
You must first find an employer who is willing to sponsor you for your green card by offering you a position that qualifies under an employment-based green card category. Most of the U.S. employment-based green card categories must be sponsored by an employer. This can be either your current H-1B employer or a different employer. Some requirements must be met before an employer can qualify to sponsor an employee’s green card application.
If your current employer doesn’t meet these criteria, you may need to change your job before you can commence your application process. Also, not all H-1B job positions meet green card adjustment requirements. For this reason, you may also need to change your current job position or take on roles with bigger responsibilities to garner the required work experience for your choice of a green card out of the available employment-based categories.
Then, your employer must obtain a PERM Labor Certification. This means that the prevailing wage will need to be determined and eventually paid as your wage, an extensive recruitment process must take place for the position you will fill to ensure that no U.S. workers are available, and an ETA 9089 form must be filed.
Once the PERM has been approved, your employer must then file an I-140 Immigration Petition for Alien Worker. On Form I-140, your employer must prove they are in good financial shape, as that is needed to demonstrate their ability to pay the salary for the job position. The form must be submitted with the approved PERM labor certification and a filing fee. If your petition is approved, then the USCIS will send you an Approval Notice. This indicates that you can move to the next stage of your green card application process. Keep in mind that an approved I-140 doesn’t mean your status has been adjusted from nonimmigrant to immigrant. You will need to wait until the end of the 5th step, which is I-485 petition approval.
As soon as the USCIS receives your petition, that date is your priority date. You will need to wait until your priority date becomes current before moving on to the final step. Check the latest visa bulletin to learn more about current dates.
Once you have a current priority date, you can apply for an adjustment of status by submitting the I-485 form with the USCIS. If it is approved, then you will receive your green card.
The H-1B to green card processing time in 2023 is approximately 6-18+ months.
At the end of the day, the processing times vary wildly. An EB-2 applicant from Mexico whose employer does not encounter a PERM audit may be able to transition from H-1B to green card status faster than someone from a different country. However, an Indian EB-3 applicant will most likely find themselves waiting over a decade for their green card to process.
In order to get a better grasp of what the waiting times will be in your particular situation, be sure to consult with your immigration attorney.
When to Apply for a Green Card After H-1B
As an H-1B holder, you can start your status adjustment to green card status as soon as your employer is ready to sponsor you. Each year, there are tens of thousands of employment-based green card applications submitted for processing. This process involves various organizations, which include the Department of Labor (DOL) and the United States of Citizenship and Immigration Services (USCIS). On average, the DOL process takes about 6 months, and the USCIS process also takes several months.
For example, a look into the DOL statistics for PERM Labor Certification FY 2023 Q2 shows that the H-1B employers had the largest number of employment-based PERM applications for a green card. Out of 74,579 applications for the first two quarters of the year, 32,386, which was 66.3% of the total figure came from the H-1B category.
A further review of the top 5 occupations included:
This goes to show how competitive the process is and why the preparation work must be started as early as possible. You should also factor in the possibility of an audit review in your application, which can further extend the processing time to more than a year. For this reason, it may be costly to delay your application, as you could be out of status if your H-1B expires when you haven’t commenced your green card application process.
There are a number of different avenues you can take after being on the H-1B visa:
The fees associated with getting a green card will vary depending on the path but these are some possible ones:
Immigrant Petition for Alien Worker (Form I-140) Fee: This is required for employment-based green cards. The fee is $700 or up to $2,805 if you elect for premium processing.
I-485 Adjustment of Status Fee: $1,140 (for applicants aged 14-78), plus an additional $85 for biometric services.
Labor Certification (if applicable): Varies depending on the advertising and recruitment methods.
Medical Examination: You may be required to undergo an exam for the green card application and fees vary.
Translation and Document Costs: If any documents need translation or if additional documentation is required, there may be associated costs.
Attorney Fees: Vary
If your H-1B status has expired and you want to try to regain it, there are a few options. USCIS may allow you to extend your status (under section 214.1(c)(4) regulation 8 C.F.R. if you meet their criteria:
To learn more about this option, you can visit the USCIS website about extending your status.
Determining when to ask your employer to sponsor you for a green card involves the right timing. However, in many cases, if you wait too long or postpone the process you may confront additional and unwanted delays.
On the other hand, employers may hesitate with this request because oftentimes foreign workers leave their place of work after receiving approval for their green card. EB-2 and EB-3 visas are quite popular options for green cards.
The EB-2 green card is for professionals holding advanced degrees or individuals with exceptional ability in the arts, sciences, or business.
What is required? A job offer is necessary for the green card process EB-2 immigrant visas require and the U.S. employer must file a petition on behalf of the applicant. You must also have either a labor certification approved by the DOL, a Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.
Aliens may apply for an exemption from the job offer and labor certification if the exemption would be in the national interest of the United States. This is usually the case for entrepreneurs, partners, and small business owners that cannot obtain a job offer.
In these cases, the alien may file the I-140 petition along with a National Interest Waiver as evidence that the business enterprise will benefit the economy or culture of the U.S. An EB-2 visa lawyer can best identify which option would result in approval for your case.
The employment third preference category is for skilled workers, professionals holding bachelor’s degrees and individuals who are considered other workers. These “other workers” include manual and unskilled laborers that do not perform temporary or seasonal tasks.
What is required? Third Preference applicants require an approved I-140 petition filed by the prospective U.S. employer, evidence of having experience in the desired field, and one of the following items:
Skilled workers must have at least two years of experience in their relevant fields while unskilled workers may suffice with on-the-job training and the ability to perform unskilled labor. It is important to note that the “unskilled workers” subcategory has a different set of priority dates from the other EB-3 subcategories.
If you are making the transfer from H-1B to green card status, then your employer should have already obtained a PERM Labor Certification on your behalf.
Can I stay with the same employer and do EB-3 to EB-2 porting?
In some cases, you can stay with the same employer but know that it will be more heavily scrutinized by USCIS because it has been exploited in the past. The EB-2 job should also be 50% different from the EB-3 job.
Be prepared to defend yourself against the following questions:
Speak with your immigration lawyer if you are considering this delicate process.
The process to become a citizen goes like this:
H-1B to Green Card Denial
As explained above, the H-1B to green card application is a long process with various steps. While all beneficiaries and petitioners want a smooth process all through, this is not always the case. There is a possibility of facing a denial at any of the stages. For instance, your PERM labor certification application can be denied by the DOL. Also, the USCIS has all the right to deny your status adjustment petition if they deem it fit. In the past few years, the denial rate for employment-based green card applications has been increasing. It is, therefore, important to ensure strict compliance with the instructions while filing your application. H-1B to green card application can be denied for many reasons, which include:
What to Do If Your Application is Denied
Receiving a green card denial notice isn’t the end of your application process except you don’t want to push further. There are a few options to explore to see if you could get the decision overturned. You can request a motion to reconsider or file an appeal.
A motion to reconsider can be filed if you and your attorney are certain that the denial was made in error by the evaluating officer in charge of your petition. You will need to back it up with strong evidence. An appeal means you want a higher authority to take another look at the case.
The case may be reviewed by three different parties, including the officer who made the first decision, the Administrative Appeals Office (AAO), and the Board of Immigration Appeals (BIA). Motions and appeals can be somewhat complex and time-consuming, but they are routes worth taking, especially if you are sure you provided all the required documentation.
Changing your status from the H-1B to the green card process can be complex without the help of a green card lawyer. The H-1B visa attorneys at VisaNation Law Group can assist you in determining the best course of action for your particular case. We have handled a range of complex employment-based green card cases for professionals in a wide range of industries including IT, healthcare, retail, hospitality, and finance. Click the button above and fill out the form to schedule your consultation.
Tags: Adjustment of Status, H-1B Rules, PERM Process
