For foreign nationals working in the United States, the H1B visa is a popular option to legally work and live in the country. The H1B visa is a non-immigrant visa that allows foreign workers to work for a US-based employer in a specialty occupation.
However, for many H1B visa holders, the ultimate goal is to obtain permanent residency in the United States. A green card grants a person permanent residency status in the US and opens up a host of benefits, including the ability to live and work permanently in the country, the ability to travel freely, and the ability to sponsor family members for US visas.
In this blog, we will explore when an H1B visa holder can apply for a green card, the green card application process, and some frequently asked questions related to the topic.
What Is the H-1B US Work Visa Application Process?
Before we dive into the green card application process for H1B visa holders, let’s take a look at the H1B visa application process. To apply for an H1B visa, an employer in the United States must sponsor the foreign national. The employer must show that the foreign national has the necessary qualifications, education, and experience to work in a specialty occupation, which typically requires a bachelor’s degree or higher in a specific field. The employer must also pay the H1B worker the prevailing wage for the position in the geographic area where the worker will be employed.
Once the employer has filed the necessary paperwork with the US Citizenship and Immigration Services (USCIS), the foreign national can apply for an H1B visa at a US consulate or embassy abroad. The H1B visa is initially valid for three years, with the option to extend for an additional three years. After six years of H1B status, the foreign national must either leave the United States or apply for permanent residency.
When Can an H-1B Work Visa Holder Apply for a US Green Card?
An H1B visa holder can apply for a green card after they have been in the United States for a certain amount of time. The process for obtaining a green card varies depending on the individual’s circumstances, such as their nationality, their job, and whether they have a spouse or children who are US citizens or permanent residents.
Employment-Based Green Cards
For most H1B visa holders, the path to a green card is through employment-based immigration. There are five employment-based categories for green cards, and each category has different eligibility requirements and priority dates. The five employment-based categories are:
EB-1: Priority Workers
The EB-1 category is for priority workers who have extraordinary ability in the sciences, arts, education, business, or athletics; are outstanding professors or researchers; or are multinational executives or managers. This category does not require a labor certification from the DOL, which means that the employer can file an immigrant visa petition directly with the USCIS on behalf of the H1B visa holder. There is also no wait time for a visa number, which means that the H1B visa holder can apply for an adjustment of status or consular processing immediately.
EB-2: Professionals with Advanced Degrees or Exceptional Ability
The EB-2 category is for professionals with advanced degrees or exceptional ability in the sciences, arts, or business. This category requires a labor certification from the DOL, and the wait time for a visa number can vary depending on the individual’s country of birth. However, individuals who qualify for a national interest waiver can bypass the labor certification requirement and the job offer requirement, making the process faster and easier.
EB-3: Skilled Workers, Professionals, and Other Workers
The EB-3 category is for skilled workers, professionals, and other workers who do not qualify for the EB-1 or EB-2 categories. Skilled workers are those who have at least two years of job experience or training, while professionals have a bachelor’s degree or its equivalent. Other workers are those who perform unskilled labor that requires less than two years of training or experience. This category requires a labor certification from the DOL, and the wait time for a visa number can vary depending on the individual’s country of birth.
EB-4: Special Immigrants
The EB-4 category is for special immigrants who have certain types of jobs or qualifications, such as religious workers, broadcasters, Iraqi or Afghan translators, and certain types of international employees. This category does not require a labor certification from the DOL, and the wait time for a visa number can vary depending on the individual’s country of birth.
EB-5: Immigrant Investors
The EB-5 category is for immigrant investors who invest at least $1.8 million in a new commercial enterprise that creates at least 10 full-time jobs for US workers. The investment requirement is lower for investments made in a targeted employment area.
This category does not require a labor certification from the DOL, and the wait time for a visa number can vary depending on the individual’s country of birth. However, there is a limited number of visas available each year, and the process can be complex and time-consuming.
In most cases, an H1B visa holder will be eligible for either the EB-2 or EB-3 category. To be eligible for the EB-2 category, the H1B visa holder must have an advanced degree or its equivalent, or they must have exceptional ability in their field. The EB-3 category is for skilled workers, professionals, and other workers, and it requires a bachelor’s degree or two years of relevant work experience.
For the EB-2 and EB-3 categories, the employer must file a labor certification with the Department of Labor (DOL) to show that there are no qualified US workers available for the job. Once the labor certification is approved, the employer can file an immigrant visa petition with the USCIS on behalf of the H1B visa holder. The priority date for the immigrant visa petition is the date that the labor certification was filed with the DOL, which determines the individual’s place in the queue for a green card.
The wait time for a green card varies depending on the individual’s country of birth, the employment category, and the number of green cards available each year. For individuals born in countries with high demand for green cards, such as India and China, the wait time can be several years or even decades.
It’s important to note that H1B visa holders who are sponsored for a green card through employment-based immigration may be able to remain in the United States while their green card application is pending. This is because the USCIS allows certain employment-based green card applicants to apply for an employment authorization document (EAD) and advance parole, which allows them to work and travel outside the US while their green card application is pending.
Family-Based Green Cards
In some cases, an H1B visa holder may be eligible for a green card through a family member who is a US citizen or permanent resident. This is known as family-based immigration. To be eligible for a family-based green card, the individual must have a qualifying relationship with a US citizen or permanent resident, such as a spouse, parent, or child.
The wait time for a family-based green card also varies depending on the individual’s country of birth and the relationship to the US citizen or permanent resident sponsor.
Immediate relatives of US citizens, such as spouses, parents, and unmarried children under 21, are not subject to numerical limits and can usually obtain a green card without a long wait. However, other family-based categories, such as siblings of US citizens or adult children of US citizens, or permanent residents, have longer wait times due to annual numerical limits on green cards.
How Can I Apply for a Green Card After H1B Status Is Coming to an End?
If an H1B visa holder’s six-year limit is approaching, they must either leave the United States or apply for a green card. Here are the steps to apply for a green card after H1B status is coming to an end:
-
Determine Eligibility
The first step is to determine which green card category the individual is eligible for based on their education, work experience, and job offer. This will require research and consultation with an immigration attorney or employer.
-
Obtain a Labor Certification
For most employment-based green card categories, the employer must obtain a labor certification from the DOL to show that there are no qualified US workers available for the job. The labor certification process can take several months to a year.
-
File an Immigrant Visa Petition
Once the labor certification is approved, the employer can file an immigrant visa petition with the USCIS on behalf of the H1B visa holder. The priority date for the immigrant visa petition is the date that the labor certification was filed with the DOL.
-
Wait for a Visa Number
After the immigrant visa petition is approved, the H1B visa holder must wait for a visa number to become available based on their priority date and the annual numerical limits on green cards. The wait time can vary depending on the individual’s country of birth and the green card category.
-
File for Adjustment of Status or Consular Processing
Once a visa number is available, the H1B visa holder can either file for adjustment of status if they are in the United States or consular processing if they are outside the United States. Adjustment of status allows the individual to apply for a green card without leaving the United States, while consular processing requires the individual to go to a US consulate or embassy abroad for an immigrant visa interview.
-
Attend a Green Card Interview
If the individual applies for adjustment of status, they will be required to attend a green card interview with a USCIS officer. The purpose of the interview is to verify the information provided in the green card application and to determine if the individual is eligible for a green card. The interview can take place several months after the green card application is filed.
-
Receive a Green Card
If the USCIS approves the green card application, the H1B visa holder will receive a green card in the mail. The green card is valid for 10 years and can be renewed indefinitely as long as the individual meets the eligibility requirements.
It’s important to note that the green card application process can be complex and time-consuming, and it’s essential to seek the advice of an experienced immigration attorney to ensure the best possible outcome.
Conclusion
In conclusion, H1B visa holders who wish to apply for a green card must carefully navigate the complex US immigration system to ensure a successful outcome. The eligibility requirements, wait times, and application process can vary depending on the individual’s education, work experience, job offer, and country of birth.
For most employment-based green card categories, the employer must obtain a labor certification from the DOL to show that there are no qualified US workers available for the job. Once the labor certification is approved, the employer can file an immigrant visa petition with the USCIS on behalf of the H1B visa holder. The priority date for the immigrant visa petition is the date that the labor certification was filed with the DOL.
After the immigrant visa petition is approved, the H1B visa holder must wait for a visa number to become available based on their priority date and the annual numerical limits on green cards. The wait time can vary depending on the individual’s country of birth and the green card category.
Once a visa number is available, the H1B visa holder can either file for adjustment of status if they are in the United States or consular processing if they are outside the United States. Adjustment of status allows the individual to apply for a green card without leaving the United States, while consular processing requires the individual to go to a US consulate or embassy abroad for an immigrant visa interview.
If the USCIS approves the green card application, the H1B visa holder will receive a green card in the mail. The green card is valid for 10 years and can be renewed indefinitely as long as the individual meets the eligibility requirements.
Frequently Asked Questions (FAQ’s)
Q: How long can an H1B visa holder stay in the United States?
A: An H1B visa holder can stay in the United States for up to six years, with the possibility of extending for an additional three years in certain circumstances.
Q: Can an H1B visa holder apply for a green card?
A: Yes, an H1B visa holder can apply for a green card through employment-based or family-based immigration.
Q: What is the difference between adjustment of status and consular processing?
A: Adjustment of status allows an individual to apply for a green card without leaving the United States, while consular processing requires the individual to go to a US consulate or embassy abroad for an immigrant visa interview.
Q: How long does it take to get a green card after applying?
A: The wait time for a green card can vary depending on the individual’s country of birth, the employment category, and the number of green cards available each year. In some cases, the wait time can be several years or even decades.
Q: Do I need an immigration attorney to apply for a green card?
A: While it’s not required to have an immigration attorney, it’s highly recommended to seek the advice of an experienced attorney to ensure the best possible outcome. The green card application process can be complex and time-consuming, and an attorney can help navigate the system and avoid potential pitfalls.