H1B Visa to Green Card

If you are in the fifth year of your H-1B visa and you are interested in continuing to work and residing in the United States, your sponsoring company can either file for an extension of your status or begin the process to transition you from the H-1B visa to permanent residence (green card). H-1B visa is a dual intent visa and allows for extensions beyond the 6-year visa limitation, as long as there is a pending immigrant petition with USCIS. This often makes H-1B a visa of choice for the specialty occupation professionals who are looking to work and reside in the United States. In this article we explore the transition from H1B visa to green card status including the steps of the process and the timeline expectations.

The H-1B to Green Card Process

The process of transitioning from an H-1B visa to a green card and filing for a PERM labor certification must be initiated by your employer. If your H-1B status is expiring before your permanent resident application is adjudicated and approved, you might be able to utilize the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) rule, which allows you to extend the H-1B visa past the six-year limitation. You must have a pending Form I-140 immigrant petition or PERM Labor Certification in place to take advantage of this rule. The Form I-140 immigrant petition must have been filed 365 days before the beginning of the six-year limit.

The AC21 rule does provide for an exception. If your I-140 immigrant petition has been approved and your priority date is not current, or your PERM Labor Certification Application has been pending for a year, you can have unlimited extensions until you complete the green card process.

The H-1B to green card process includes some of the following steps:

  • You must maintain legal immigration status throughout the process.
  • Your employer must sponsor you for a green card, and the employer must be qualified.
  • Make sure your H-1B position meets the requirements for the PERM labor certification and an adjustment of status.
  • Your employer must file a Prevailing Wage Determination application with the DOL.
  • Your employer must file an ETA-9089 PERM Labor Certification Application after conducting a labor market test, as long as there are no able, willing and minimally qualified U.S. workers available to fill the position.
  • After the PERM Labor Certification is approved, your employer must file Form I-140 Immigrant Petition for Alien Worker.
  • Your priority date is the date that the USCIS receipts Form I-140. You must wait for your priority date to become current before moving on to the next step of filing for an adjustment of status (green card).
  • Finally, once your priority date is current you may file Form I-485 Application to Register Permanent Residence or Adjust Status to apply for the adjustment of status from the H-1B to permanent residence.

The H1B to Green Card Timeline

The H-1B to green card timeline can start as early as you receive your H-1B status, as long as your employer is willing to sponsor you for permanent residence. Your employer will most likely want you to work for at least a year prior to beginning this step in the process, given this is a hefty investment financially and time-wise.

Once your employer decides to sponsor you, the clock starts and we have gauge the timeline:

  • Job description must be comprehensive and detailed: defining your duties.
  • Defining the minimum requirements for the position.
  • Analyze the prevailing wage and file for a Prevailing Wage Determination, which would determine the salary for the position. This information is based on the occupational classification, economic environment and your location.
  • The employer must extensively recruit for your position as it must show that no other qualified “U.S. workers” are available.

These processes can take a lot of time, depending on your employer’s recruitment process. Once your employer has taken these steps and has the documentation showing that no “U.S. worker is available and / or minimally qualified for the role, they may then file the PERM Labor Certification.

The priority date will control the filing for the adjustment of status. The priority date depends on several factors, described above. USCIS has two offices that adjudicate Form I-140 immigrant petitions: Nebraska and Texas Service Centers. You may check the processing times for Form I-140 and other adjustment of status forms through USCIS website.

Transitioning from H1B Visa to Green Card: How Long Does the Process Take?

You must go through several steps to transition from an H-1B visa to a green card. The entire process could take up to several years (if there are per country limitation, for example India or Mexico) or as little as 10-14 months if your immigrant visa category is current at the time. The PERM Labor Certification could take up to 18 months if the application is audited or as little as 4-6 months if it is not.

What controls the adjustment of status application filing is the priority date and it must be current before you may file for permanent residence. Your employer must file immigrant petition Form I-140 on your behalf, and in some cases it may be filed Premium Processing, as long as your priority date is current and there are no per country limitation.

Finally, the time it takes to process your I-485 depends on which USCIS Service Center it was filed with. If a Service Center is experiencing extensive backlogs, it will take longer.

H1B Visa to Green Card FAQs

+ Can you get a green card without H-1B visa first?

You must apply for a green card once you are in the United States, which means you have to have a valid visa, and it does not have to be an H-1B visa. The government allows certain individuals to apply for a green card without a family or employment sponsorship.

+ What happens to H-1B visa after the green card transition is complete?

If you receive a green card, your H-1B status is terminated. The green card takes the place of the H-1B visa and you may continue employment in the U.S. A green card generally expires after 10 years, so you must remember to renew it.

+ How does the H-1B to marriage green card transition work?

If your spouse or parent is in the process of securing a green card, you may apply for a green card as an “employment-based derivative applicant.” You must file a concurrent Form I-485 with the main applicant’s Form I-485. The primary applicant must be lawfully present in the United States.

Let Us Help With Your H-1B Visa to Green Card Process

Work with a business immigration attorney who understands the interworking of a H-1B visa to green card process. Reach out to Batrakova Law to learn about your immigration options and enjoy all the benefits of working with an experienced immigration lawyer in Portland, Oregon.