H2B Visa to Green Card

If you have an H-2B 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-2B visa to green card or permanent residence.

What is an H-2B Visa?

The H-2B Visa is a temporary non-agricultural worker visa for employers looking to utilize business immigration to hire foreign nationals to perform temporary services or labor on a one-time, seasonal, peak load or intermittent basis.

Only the nationals of the countries that are on the H-2B visa list may apply for the visa. There is an annual cap of 66,000 H-2B visas, with 33,000 visas available the first part of the year, starting on April 1st and the second cap of the remainder 33,000 available, starting on October 1st.

The H-2B visa in recent years has become more competitive and there is often a lottery during the first part of the year. More employers are seeking non-agricultural foreign workers and the cap gets reached quickly.

If you are a U.S. employer of H-2B temporary workers, you may have noticed increasing uncertainty in the timing and quantity of the annual renewals your company has been able to obtain for such workers during recent years.

Increased regulation, more restrictive executive orders, and an ever-growing demand from foreign workers for the limited quantity of these employment-based visas each year are all factors which make it difficult for sponsoring employers to be able to rely on the efficacy of this type of short-term staffing solution.

H-2B Visa

What is an EB-3 Immigrant Visa?

The third employment-based immigration category (EB-3) is a long-term, permanent equivalent to both of these short-term visa options; and for any such workers you already have in your employ who are present in the United States, or who will soon be returning on their H-2B visa status, you have an option of sponsoring them for permanent employment and subsequent permanent residence through an EB-3 immigrant filing.

The EB-3 program has been in existence for more than 50 years, and its main purpose is to issue a third preference category immigrant status based on employment, through which U.S. Citizenship and Immigration Service (USCIS) allows applicants to enter the United States and obtain a green card through employment.

An EB-3 immigrant status is used for jobs in more vocational areas. However, because the educational and professional qualifications are reduced, the wait to obtain this visa and backlog of applicants can be long, especially for certain nationalities. You must also have an employer sponsoring for a full-time permanent position, file a labor certification with U.S. Department of Labor (DOL), and prove that there are no able and minimally qualified U.S. workers for the position.

Three EB-3 Visa sub-categories

  • EB-3(A): This category of ‘skilled workers’ requires at least two years of work training or experience for a minimum entry position in the field, as well as a job offer in the United States that is neither seasonal nor temporary.
  • EB-3(B): This category of ‘professional workers’ requires a U.S. Baccalaureate Degree (or its foreign equivalent) and a job offer in the United States.
  • EB-3(C): This category of ‘other workers’ is for unskilled workers in a field that requires less than two years of experience, and a permanent, not seasonal, position in the United States.

What are EB-3 Visa jobs?

  • EB-3(A) category jobs include certain types of technical workers, or specialized work such as chefs, construction managers, stonemasons, craftsmen, journalists or graphic designers.
  • EB-3(B) category jobs include lawyers, architects, engineers, and teachers.
  • EB-3(C) category jobs include, but are not limited to, nannies, caretakers, janitors, housekeepers, and certain construction workers. Only 10,000 visas are allocated to this category each year causing a longer wait time for the applicants.

The H-2B to Green Card Process

In order to secure an EB-3 immigrant visa, there are a few steps you and your employer must undergo. Specifically, you must have a full-time employment permanent job offer and the employer must file a Prevailing Wage Determination application with the DOL. Second, the employer must submit a PERM Labor Certification to the Department of Labor, verifying that they have advertised the position and there are no able and minimally qualified U.S. workers for the position. Third, upon approval of the PERM labor certification, the employer must file the immigrant petition (Form I-140) with USCIS and upon receipting by USCIS you will receive your priority date and are eligible to file Form I-485 Application for Permanent Residence (if currently in the United States) or consular process for an immigrant visa (if you are abroad).

The H-2B to Green Card Timeline

The PERM Labor Certification can take anywhere from 6 to 9 months or even longer, if there is an audit. DOL recommends beginning the PERM advertising process no fewer than 30 days, and no later than 180 days prior to filing the application. Once the PERM labor certification has been approved, the employer must then file Form I-140 Immigrant Petition for Alien Worker with USCIS. For an additional Premium Processing fee, USCIS will render a decision within 15 days. If the employer chooses regular processing opposed to Premium Processing, it will take anywhere from 6 to 10 months. The final step in this process is filing of Form I-485 Application for Permanent Residence or Consular Processing for an Immigrant Visa at the U.S. Consulate abroad. Form I-485 cannot be legally filed until U.S. Department of State (DOS) approves the petitioner’s priority date and this date is determined by the monthly Visa Bulletin. The Visa Bulletin and priority date balance the type of visa with the nationality of the petitioner to create the priority date for the applicant. With a “current” priority date you are officially off the visa waiting list and eligible to obtain your visa abroad or adjust your status in the United States.

The EB-3 category is subject to an annual cap. Along with this annual cap of all “green card” employment visas, there is also a nationality cap in which no more than 7% of the visas in each category can go to any single nationality. This category of employment-based visas generally has a longer wait time, especially if you are an Indian or Chinese national. When a country has exceeded its 7% max annually, especially if this occurs year after year, it creates a backlog in that nationality’s priority date wait time.

Let Us Help With Your H-2B Visa to Green Card Process

Please regularly review the monthly Visa Bulletin issued by the DOS to ensure your priority date is current. Please keep in mind that an experienced business Immigration Attorney can research and help present your best immigration options, given your nationality, educational level, type of job, and potential wait period.