Skilled workers working in the United States on an H-1B visa know there is a limit to how long they can remain in the country on their visa.
The H-1B visa allows noncitizens to work in the U.S. for up to six years, after which you have two options:
Go back to your prior home country; or
File to adjust status to permanent residency.
In order to become a U.S. permanent resident, you must transition from an H-1B visa status to Green Card, which is often the best option for skilled individuals who wish to remain in the U.S. for the long term.
What is an H-1B visa?
Foreign nationals typically require authorization to enter and work in the U.S. The H-1B visa program offers skilled workers who hold bachelor’s or master’s degrees the opportunity to gain employment in the U.S. for an initial period of three years.
The H-1B application process requires sponsorship from a U.S.-based employer. When a U.S.-based employer cannot find the necessary talent from the domestic pool of workers, they may opt to hire a noncitizen through the H-1B program.
The U.S. company sends a job offer to a noncitizen and may have to agree on specific terms, such as salary and contract length. The company may then file petitions with the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) to request an H-1B visa for the noncitizen worker.
A successful H-1B application, visa stamp, and work permit allows skilled individuals to:
Obtain a Social Security number
Apply for a state ID or driver's license
Open a bank account
Buy or rent a car
Rent or own property
The initial term of the H-1B visa is three years and is renewable for up to three additional years.
What is a Green Card?
A Green Card is a permit that allows a noncitizen to permanently live and work in the U.S. While the name Green Card is used almost universally to describe the permit, its technical name is a "Lawful Permanent Resident Card".
Individuals from other countries who enter, live and work in the U.S. for several years and eventually obtain a Green Card are considered permanent residents. Unlike the H-1B, a Green Card permit does not require renewal.
Green Card holders may live and work in the U.S. for as long as they please. They can freely travel in and out of the country and don’t need to be sponsored by an employer to maintain their legal permanent residence.
Noncitizens with a valid Green Card enjoy some, but not all, of the rights and privileges as U.S. citizens. For example, Green Card holders cannot vote in U.S. elections.
It is also possible to forfeit a Green Card if the individual spends an extended amount of time out of the U.S. A Green Card holder who moves back to their home country may risk of losing their permanent resident status in the U.S.
Green Card holders may also be subject to deportation if they are accused or convicted of a serious crime.
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Types of Green Cards
There are three main options for individuals who wish to obtain a U.S. Green Card. These include:
Family-based Green Cards
Employment-based Green Cards
Green Card lottery
Family-based Green Cards are an option for individuals who already have immediate family members who are U.S. citizens. One of those family members may sponsor the interested individual.
Obtaining a family-based Green Card is a lengthy process. In many instances, a candidate must remain in their home country while their application is processed. Given that it can take anywhere from a year to a decade to process the application, it may not be a viable option for everyone.
The Green Card lottery is conducted every year, with USCIS giving away 55,000 Green Cards to lucky noncitizens. The lottery is a random drawing of names and there are up to 20 million applicants in a given year.
Employment-based Green Card categories
The employment-based Green Card categories are divided into three groups: EB-1, EB-2, and EB-3.
First preference - EB-1
These are priority workers for employment-based Green Cards. Applicants must demonstrate:
Recognition as an outstanding professor and researcher
Qualifications as a multinational manager or executive
Requirements for each subcategory are listed on the USCIS website.
Second preference - EB-2
The second preference category is reserved for foreign nationals who hold advanced degrees or show exceptional ability.
An advanced degree is classified as a bachelor's degree and five years of progressive work experience in that field.
Applicants must demonstrate exceptional ability in the sciences, arts or business. It is classified as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business" by USCIS.
Third preference - EB-3
All other skilled workers and professionals fall into the third preference category. A skilled worker must show at least two years of job experience in their field, while the employer must prove that American workers cannot do the job.
Professionals must have a U.S. bachelor's degree or foreign-equivalent. It is also possible for unskilled workers to fall into the EB-3 category, but they must prove their work is not temporary and that U.S. workers cannot do the job.
Transitioning from the H-1B visa to a Green Card
The transition from an H-1B visa to an employer-based Green Card is initiated by employers. U.S.-based companies that sponsor workers for work visas are typically the ones responsible for Green Card sponsorship as well.
A recent Envoy Global study indicates that companies are increasingly offering Green Cards to workers from abroad to help them transition to a permanent life in the U.S.
Approximately 66 percent of employers from the Envoy Global study said they offer Green Cards to employees. Roughly the same number say they may begin that process from the first year of the noncitizen worker’s employment with an H-1B visa status.
That means that several H-1B workers may have had their Green Card application processed within a few months of arriving in the U.S. Some companies, however, may prefer to wait longer before filing a Green Card application on behalf of their employees.
Discussing the future with an employer
Some employers may not commit to offering an H-1B worker a Green Card sponsorship at the beginning of that worker’s contract. In these instances, noncitizens may need to wait a few years before they can discuss the possibility of a Green Card petition with their employer.
Waiting to have that discussion until a few months before the expiration date of an H-1B visa, however, may be too late. Ideally, noncitizen workers should know if their employer is willing to sponsor their Green Card application by the start of their sixth year on an H-1B visa.
How to apply for a Green Card
PERM Labor Certification
The first step in transitioning from an H-1B visa to a Green Card is filing a PERM Labor Certification application. PERM stands for Program Electronic Review Management. The PERM Labor Certification application is necessary for anyone who falls into the EB-2 and EB-3 categories.
PERM is an electronic system that allows companies to file labor certification applications with the U.S. Department of Labor (DOL) to allow the government to determine if the company has made every effort to hire an American worker for the position.
Furthermore, the company usually has to prove that hiring a noncitizen does not hurt the wages or working conditions of Americans who perform similar jobs.
After applying, the DOL may provide a prevailing wage determination which may indicate the base salary requirement for the position that a noncitizen worker is being sponsored to fill.
There may be mandatory requirement processes the company must go through to show they tried to hire an American for the position. Such a process may include placing newspaper, radio, online, or TV ads for the job, conducting interviews and attempting to find qualified American workers who can fulfill the role in question.
When these processes are complete, the employer may file an ETA Form 9089 with the DOL.
Form I-140: Immigrant petition for alien worker
When the DOL approves the Form 9089 application, an employer may file Form I-140, Immigrant Petition for Alien Worker, with USCIS.
Form I-485: Adjustment of status
It is possible to file the Form I-485 in conjunction with Form I-140. When the I-485 form is submitted, a noncitizen may also apply for an Employment Authorization Document (EAD) that extends beyond the expiration date of their existing H-1B visa.
The form includes information about the applicant, such as:
Recent immigration history
Information about their parents
Details about current marriage (if applicable)
Information about prior marriages (if applicable)
Details about children (if applicable)
Questions about eligibility and inadmissibility
A PDF version of the form and instructions for filing are available on the USCIS website.
Green Card application fees
There are significant fees associated with transitioning from an H-1B visa to a Green Card. The employer offsets part of the cost, but noncitizen workers should expect to pay some of the fees themselves.
The legal fees for a Green Card application may include:
$2,000 to $5,000 PERM certification application filing, which is handled by the employer
$580 fee for filing Form I-140, which is typically paid by the worker
$1,070 fee for filing Form I-485, which is typically paid by the worker
Additional costs may include hiring an immigration attorney. Many H-1B workers opt to hire an attorney as they attempt to understand the complex nature of transitioning to a Green Card.
Potential delays in Green Card processing
Each step of the Green Card application process may take many months, depending on individual circumstances. PERM certification may take between six to 18 months, which is usually why employers are encouraged to start the process as soon as possible.
Another factor that impacts the time it takes to process the application is the priority date of the applicant.
The country of origin determines the priority date. The U.S. Congress usually places limits on how many employment-based Green Cards can be given to citizens from a given country in a particular fiscal year.
As a result, some nations have no wait time while countries with more applicants may have wait times of several months or years. More information may be found on the USCIS website.
Applicants from China, the Philippines, Mexico, and Vietnam, for example, often have two- or three-year wait times for EB-2 or EB-3 applications. Indian citizens applying for a Green Card can expect even longer delays, with some applications remaining pending for decades.
Delays may not be as significant for EB-1 applications, as those are the first priority under existing USCIS regulations.
Pending Green Card application: Can I keep working?
H-1B workers may question how they can remain in the U.S. legally if the processing time for Green Card applications varies from months to years. The answer is through the extension of the H-1B status because of a pending Green Card application.
To allow for rolling one-year extensions of the H-1B visa beyond the sixth year, the employer must file one of the following before the start of the sixth year of the H-1B worker’s visa:
PERM Labor Certification Application
By submitting either of these applications on time, it may be possible to request an H-1B extension beyond six years through USCIS. Noncitizens are encouraged to speak with an immigration attorney about the specifics of the process and their unique situation.
What happens to H-4 visa holders?
H-4 visa holders may continue to live in the U.S. legally, provided the H-1B worker who is tied to their application continues to maintain their legal status.
If a noncitizen continues to extend their H-1B visa beyond the six-year limit due to a pending Green Card application, they may also file to extend H-4 status for their spouse and children.
When the applicant receives their Green Card, they may petition for their spouse and unmarried children of any age to become permanent residents of the U.S.
The process for Green Card holders to sponsor immediate family is detailed on the USCIS website. Much like any immigrant visa, there may be priorities for processing these applications.
Green Card to citizenship
A noncitizen who obtains a Green Card cannot apply for naturalization for at least five years.
Other requirements for filing a naturalization application typically include:
Age of 18 or older
Living at the present location for at least three months before filing the application
Continuous presence in the U.S. as a Green Card holder for a minimum of five years
Physical presence in the U.S. for a minimum of 30 months within the past five years before the application date
Knowledge of U.S. history and government
Good moral character
The decision to obtain U.S. citizenship is optional as it is possible to remain in the country on a Green Card indefinitely. There are individuals who spend decades living and working in the country without applying for naturalization.
Naturalization, however, usually offers voting privileges and may eliminate the possibility of the revocation of your legal permanent residence in the U.S. It is the final step in the lengthy immigration journey of many applicants, which often starts with an H-1B work visa. Becoming a naturalized U.S. citizen may feel like a far off and nearly impossible achievement for present H-1B holders, but the journey from an H-1B visa to a Green Card and eventual citizenship is a very real one.
If you are close to the end date for your existing EAD, it is time to start thinking about your future. Those who wish to remain in the U.S. for the foreseeable future should consider submitting an immigration petition for a Green Card.
Some applications may take decades to process, given the backlog that exists, but USCIS may permit Green Card applicants to continue renewing their work visa until their application is processed.
The entire process may appear daunting. However, this guide should help you understand how you can transition from your soon-to-expire H-1B visa to a Green Card, and eventually a permanent residency in the U.S.
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