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. 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.
H-1B to Green Card Process
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).
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.
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.
Here are the steps for transitioning from H-1B to green card status:
- 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. This can be either your H-1B employer or a different employer.
- 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.
- 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.
- 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.
Consequences of Delaying the Green Card Process
Our EB-2 visa lawyers frequently receive the question: what happens if I wait until my H-1B status expires before applying for a green card?
The answer is relatively straightforward. By submitting an I-485 you’re essentially asking USCIS to adjust your status from H-1B to green card (lawful permanent resident) status.
The operative words to remember are “adjust your status”. If you are not in status, meaning that your H-1B has already expired, then you can’t technically adjust it. For that reason, the USCIS will usually deny your request and you may be subject to the consequences of remaining in the U.S. while “out of status”.
Moving from H-1B to green card involves methodical steps that could result in delays or denials if done improperly. For that reason, the H-1B to green card process is best handled by a qualified immigration attorney.
When Does My H-1B Status Expire?
You can determine the date when your H-1B status expires by looking at the date listed on your I-94 Arrival/Departure Record. You should have received an I-94 card from the port of entry officer who performed the inspection upon entrance to the U.S. (before April 2013).
If you entered the U.S. and then changed your status to H-1B, the expiration date should be at the bottom of the USCIS approval document. Individuals can consult the Customs and Border Protection database for an electronic copy of their I-94.
Once your H-1B status has expired, you will have a 10-day grace period to arrange preparations to return to your home country or to find a way to extend your status beyond the usual maximum.
H-1B Extension Past 6 Years
For the most part, you are unable to extend your H-1B visa past the 6-year maximum, which can be problematic if you need more time in the U.S. Fortunately, for those that are applying to go from an H-1B to a green card, you can petition to extend your H-1B in one-year increments while you wait. For some countries, it can take years for your priority date to become current, so as long as your I-140 has been approved by the USCIS and you are only waiting on your priority date, you can look into extending your H-1B past the 6-year limit.
Additionally, if you have filed for an extension and have not yet received an answer but your H-1B validation period is ending, you are covered under the 240-day rule. This rule states that you can continue working for your current employer (you cannot change employers or transfer your status during this time) for 240 days after the expiration of your H-1B visa. However, if your extension request is denied, you will need to cease working immediately, as the 240-day rule only applies while the USCIS is still adjudicating your petition.
Another benefit of seeking immigration status from your H-1B is the opportunity it presents to your spouse and dependent H-4 holder(s). As long as you have an approved I-140 with the USCIS, your H-4 holders will be able to file for employment authorization by getting an Employment Authorization Document (EAD). This will allow them to work anywhere in the U.S. with little restriction.
However, this EAD is tied to your principle H-1B visa. If you were to lose your H-1B status, your H-4 visa dependents would lose their statuses as well, including their EADs. However, if you were to no longer have an approved I-140 with the USCIS (if your employer were to withdraw your petition or if you were to attempt to transfer employers), then the H-4 holders’ EADs would be valid until their expiration date, where they could not be renewed unless you were able to have another I-140 filed to replace the one that was lost or withdrawn.
The current presidential administration is seeking to eliminate this H-4 EAD rule, so it may be in your best interest to consult an immigration attorney before pursuing this path.
Regaining H-1B Status After Expiration
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:
- The applicant or petitioner was delayed in filing the extension due to extraordinary circumstances outside his or her control.
- The alien hasn’t violated their nonimmigrant status, remains a bonafide non-immigrant and is not the subject of removal proceedings or deportation.
To learn more about this option, you can visit the USCIS website about extending your status.
EB-2 vs EB-3 Immigrant Visa
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 often times 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.
Employment Second Preference (EB-2 Green Card Process)
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 an approval for your case.
Employment Third Preference (EB-3 Green Card Process)
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:
- PERM Labor Certification
- Schedule-A Designation
- Evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.
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.
H-1B to Green Card Processing Times
Here is a breakdown of the processing times associated with each step of the H-1B to green card process:
- The PERM Labor Certification can take anywhere from six months without an audit to over eighteen months with an audit.
- Having your I-140 approved depends on how soon your priority date will be current. If that will not happen for several years, the USCIS may push your petition back to be processed closer to your priority date.
- Waiting for your priority date to become current with the posted DOS final action dates can be the longest waiting period for some applicants. Take a look at the most recent visa bulletin to see where your priority date falls. This wait time heavily depends on which country you come from. For example, as of March 2017, EB-2 applicants from the Philippines have no wait time while EB-2 applicants from India must wait over nine years.
- The processing time for your I-485 depends on which service center it has been sent to. Some service centers are busier and have a backlog while others may have a very short waiting period. You can refer to this database to see the current wait times.
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 in as little as 10 months. 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.
EB-3 to EB-2 Porting
There is a process known as porting that allows green card applicants to transfer their petition to a different green card status. If your I-140 petition for an EB-3 has already been filed and you are waiting on your priority date, your employer could file a new petition on your behalf under EB-2 status.
However, in order for the second petition to be approved and replace the first, you must not only acquire the personal qualifications for an EB-2 (e.g. master’s degree, exceptional ability), you must also acquire a position that requires those new qualifications. Speak with your immigration lawyer if you are considering this delicate process.
H-1B to Citizenship
Currently, there is no direct path from an H-1B visa to citizenship. In fact, there is no direct path from any nonimmigrant visa to citizenship. In order to become a citizen, you must first obtain a green card through the means we outline in this post. Once you are a lawful permanent resident, you will need to make sure that you qualify, meaning that you have either been a green card holder for five years, you have been married to a U.S. citizen for three years, or you have served in the U.S. military.
After that, you will need to file a N-400 application for naturalization and go through a citizenship interview. There, you will undergo a test that will examine your grasp of the English language as well as your understanding of basic American civics and history. If you pass, you will be able to swear the U.S. Oath of Allegiance and become a citizen.
President Trump has recently mentioned that he plans to implement a direct path to U.S. citizenship through the H-1B visa. While this would be highly advantageous for H-1B holders, it would be unprecedented. We will keep you updated with the latest information on this topic.
EB-3 vs EB-2 Green Card Process Fees
Compared to the H-1B visa, the EB-2 and EB-3 process fees are relatively small. Your employer must pay $700 for filing the I-140 petition. Once that is approved, you will need to submit an I-485 which has a fee that varies according to where you fall on this chart.
How An H-1B Visa Attorney Can Help
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 Immi-USA 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, finance, etc. Fill out this form to schedule your consultation.