The H1B visa is highly sought after by skilled professionals worldwide who wish to work in the United States. This non-immigrant visa allows foreign workers to fill specialized positions that require a high level of expertise. However, after the maximum six-year period granted by the H1B visa, many individuals aspire to transition to permanent residency, commonly known as obtaining a green card. In this blog, we will explore the process of transitioning from an H1B visa to a green card and shed light on whether the H1B visa truly leads to a green card.
Does an H1B Visa Lead to a Green Card?
The H1B visa is a popular work visa in the United States that allows skilled foreign professionals to work for US employers in specialized occupations. It is a non-immigrant visa, meaning it is initially granted for a temporary period. However, the H1B visa is considered a dual-intent visa, which means that holders of this visa can have the intention to immigrate to the US and apply for a green card, also known as lawful permanent residency.
Applying for a green card while on an H1B visa provides a pathway to obtaining permanent residency in the United States. The green card allows individuals to live and work permanently in the country, enjoy certain benefits and protections, and eventually apply for US citizenship if desired. In this blog post, we will explore the process of transitioning from an H1B visa to a green card and shed light on the various steps involved in the process.
Types of Employment-Based Green Cards
The employment-based green card system in the United States offers several categories for foreign workers seeking permanent residency. Let’s take a closer look at the various employment-based green cards and their eligibility requirements:
E-B1 or Priority Workers:
- Limited to individuals who demonstrate extraordinary ability, outstanding professors or researchers, multinational executives, and managers.
- This category is highly competitive, and only a small number of individuals qualify each year.
E-B2 or Professionals with Exceptional Ability or Advanced Degrees:
- Reserved for individuals with exceptional ability in business, science, or art, or those holding advanced degrees.
- Physicians willing to work in underserved areas of the US may also qualify under this category.
E-B3 or Skilled/Professional Workers:
- This category is open to individuals with a bachelor’s degree, skilled workers with at least two years of training, and unskilled workers.
- There is a backlog of applicants in this category, leading to significant waiting times.
E-B4 or Special Immigrants:
- Reserved for individuals working or who have worked for the US government abroad, religious workers, and translators for the US military.
E-B5 or Investors:
- Individuals who invest a substantial amount of capital in a new commercial enterprise that creates a specified number of full-time jobs in the US may qualify for this category.
The H1B to Green Card Process
The H1B to Green Card process allows foreign workers in the United States to transition from temporary H1B visa status to permanent residence (Green Card) status. This process involves several steps that must be followed in order to obtain a Green Card. In this article, we will outline the step-by-step process for transitioning from an H1B visa to a Green Card.
Step 1: Labor Certification (PERM)
The first step in the H1B to Green Card process is to obtain a Labor Certification, also known as the Program Electronic Review Management (PERM) certification. This certification is issued by the Department of Labor (DOL) and verifies that there are no qualified U.S. workers available for the job position being offered to the H1B worker. Here’s an overview of the Labor Certification process:
Job Posting and Recruitment:
The employer must conduct a recruitment process to advertise the job position to potential U.S. workers. This includes posting the job on various platforms, such as job boards and company websites, and conducting recruitment activities to attract qualified candidates.
Prevailing Wage Determination:
The employer must request a prevailing wage determination from the DOL. This determines the minimum wage that must be offered to the H1B worker based on the job position, location, and prevailing wage rates in the area.
PERM Application Preparation:
Once the recruitment process is completed and the prevailing wage is determined, the employer, with the assistance of an immigration attorney, prepares the PERM application. This includes documenting the recruitment efforts, job requirements, and justifications for hiring the H1B worker.
PERM Application Submission:
The completed PERM application is submitted electronically to the DOL for review. The DOL reviews the application to ensure compliance with the labor market regulations and verifies that there are no qualified U.S. workers available for the job position.
DOL Processing and Decision:
The DOL reviews the PERM application and may issue an audit or request additional documentation if needed. Once the application is reviewed and found to be in compliance, the DOL will issue the Labor Certification.
Step 2: Immigrant Petition
After obtaining the Labor Certification, the next step is to file an Immigrant Petition with the U.S. Citizenship and Immigration Services (USCIS). This petition establishes the basis for the H1B worker’s eligibility for an employment-based immigrant visa (Green Card). Here’s an overview of the Immigrant Petition filing process:
Form I-140 Preparation:
The employer, with the assistance of an immigration attorney, prepares and submits Form I-140, Immigrant Petition for Alien Worker, to the USCIS. This form includes information about the employer, the job position, and the qualifications of the H1B worker. The certified Labor Certification obtained in the previous step is included as supporting evidence.
Form I-140 Supporting Documents:
Along with Form I-140, the employer must provide supporting documents to establish the eligibility criteria for the employment-based immigrant category. These documents may include educational credentials, work experience letters, reference letters, and any other relevant evidence to demonstrate that the H1B worker meets the requirements for the job position.
Form I-140 Filing Fee:
The employer is responsible for paying the filing fee associated with Form I-140. The fee amount may vary, so it is advisable to check the USCIS website or consult with an immigration attorney for the most up-to-date fee information.
USCIS Processing and Decision:
Once the I-140 petition is received by the USCIS, they will review the application and supporting documents. They may issue a Request for Evidence (RFE) if additional information or documentation is needed to make a decision. The USCIS will then adjudicate the I-140 petition and issue a decision. If the petition is approved, it signifies that the H1B worker has an approved immigrant petition and establishes their eligibility for an employment-based Green Card. The priority date, which is the date the PERM Labor Certification was filed, becomes important at this stage, as it determines the H1B worker’s place in the queue for a visa number.
Step 3: Adjustment of Status or Obtaining an Immigrant Visa
Once a visa number becomes available, the H1B worker can proceed with the final step of the H1B to Green Card process, which involves applying for lawful permanent residence (Green Card) through either adjustment of status or consular processing. The specific path will depend on whether the H1B worker is already present in the United States or outside the country.
Adjustment of Status (AOS):
If the H1B worker is already present in the United States under a valid nonimmigrant status, such as an H1B visa, they may be eligible to file Form I-485, Application to Register Permanent Residence, or Adjust Status. The AOS process involves the following steps:
Form I-485 Preparation:
The H1B worker, with the assistance of an immigration attorney, prepares and submits Form I-485 to the USCIS. This form requests an adjustment of status to that of a lawful permanent resident.
Form I-485 Supporting Documents:
Along with Form I-485, the H1B worker must provide supporting documents such as identity and travel documents, evidence of eligibility for adjustment of status, medical examination results, and any other required documentation.
Form I-485 Filing Fee:
The H1B worker is responsible for paying the filing fee associated with Form I-485. The fee amount may vary, so it is advisable to check the USCIS website or consult with an immigration attorney for the most up-to-date fee information.
The H1B worker will receive a notice from the USCIS for a biometrics appointment, where their fingerprints, photograph, and signature will be taken for background checks.
USCIS Processing and Decision:
The USCIS will review the I-485 application, conduct background checks, and may issue an RFE if additional information is required. Once the USCIS is satisfied with the provided evidence and background checks, they will schedule an interview.
Green Card Interview:
The H1B worker and, in some cases, their dependents will attend an interview at a USCIS office. The purpose of the interview is to verify the information provided in the application and assess the eligibility for adjustment of status.
Approval and Green Card Issuance:
If the USCIS is satisfied with the interview and supporting documentation, they will approve the application and issue a Green Card to the H1B worker, granting them permanent residence.
If the H1B worker is outside the United States or ineligible for adjustment of status, they must go through consular processing. The consular processing steps are as follows:
The H1B worker, with the assistance of an immigration attorney, completes and submits the necessary forms for an immigrant visa application at the U.S. consulate or embassy in their home country or country of current residence.
The H1B worker submits supporting documents, including the approved Form I-140, civil documents, and any other required evidence, to the consulate or embassy.
The H1B worker attends a visa interview at the U.S. consulate or embassy. A consular officer will review the application and supporting documents, ask questions, and make a decision regarding the issuance of an immigrant visa.
The H1B worker and accompanying family members, if applicable, must undergo a medical examination by an authorized physician to ensure they meet the health requirements for immigration.
Visa Issuance and Travel:
If the consular officer approves the application, the H1B worker will be issued an immigrant visa, allowing them to travel to the United States. They will receive a sealed packet containing important documents, which should not be opened. Upon arrival in the United States, the packet should be presented to the immigration officer at the port of entry.
Green Card Processing:
After entering the United States, the H1B worker will receive their Green Card by mail at their designated U.S. address. The Green Card serves as evidence of their lawful permanent resident status.
Understanding H1B to Green Card Processing Times
The time it takes to transition from an H1B visa to a green card can vary significantly. It’s crucial to conduct thorough research and have a clear understanding of the processing times to ensure a smooth transition and avoid any gaps in legal status. Let’s break down the estimated processing times for each step of the green card process:
PERM Labor Certification:
The PERM certification, which is the first step, can take anywhere between 6 and 18 months. This step involves establishing the prevailing wage for your position, recruitment processes, and filing the required forms.
Once your PERM certification is approved, you can proceed to file Form I-140, the Immigration Petition for Alien Worker. The processing time for this form depends on the current priority date assigned to your application. If the priority date is several years away, USCIS may delay the processing of your petition.
Priority Date Wait Time:
The wait time for your priority date to become current varies based on your country of origin and the visa bulletin. It can range from no wait time to up to several years. It’s essential to stay updated on the visa bulletin to monitor the progress of your priority date.
Once your priority date becomes current, you can file Form I-485 to adjust your status to that of a permanent resident. The processing time for Form I-485 can vary, but it typically takes several months to complete. During this time, you may also be required to attend an in-person interview with USCIS.
Consequences of Delaying the H1B to Green Card Process
The consequences of delaying the H1B to green card process can have several implications:
Uncertainty in Legal Status:
If you delay the green card process, you may find yourself in a state of uncertainty regarding your legal status. This can lead to anxiety and potential complications if your H1B visa expires before you obtain your green card. It’s crucial to maintain valid and continuous legal status to avoid any issues.
Limited Employment Opportunities:
Without a green card, you may face limitations in terms of employment opportunities. Some employers may prefer to hire individuals with permanent resident status, as it provides them with more stability and flexibility. By delaying the green card process, you may miss out on certain job opportunities.
If you have dependents or family members relying on your immigration status, delaying the green card process can impact them as well. They may also face restrictions and limitations based on their dependent status. Initiating the green card process early ensures that your family members can also benefit from the transition to permanent residency.
Changes in Immigration Policies:
Immigration policies and regulations can change over time. By delaying the green card process, you may be subject to new policies or requirements that could make the process more challenging or affect your eligibility. Starting the process early allows you to benefit from existing regulations and policies.
Increased Processing Times:
As the demand for green cards continues to rise, processing times for various immigration applications, including H1B to green card transitions, can increase. By delaying the process, you may find yourself waiting longer for your application to be processed, further prolonging your journey to permanent residency.
It’s important to consult with an immigration attorney or seek guidance from USCIS to understand the specific consequences and implications of delaying the H1B to green card process based on your individual circumstances. Taking proactive steps and initiating the process early can help ensure a smoother transition and provide you with more certainty regarding your immigration status.
While an H1B visa itself does not automatically lead to a green card, it does provide a pathway for skilled professionals to apply for lawful permanent residency in the United States. The transition from an H1B visa to a green card involves obtaining a PERM labor certification, filing an I-140 petition, and ultimately adjusting your status or undergoing consular processing. The process can be complex and time-consuming, and it’s advisable to consult an immigration attorney or seek professional guidance to navigate through the various steps involved