With its thriving job market and diverse industries, the United States has long been a beacon of opportunity for highly skilled foreign workers. These professionals often begin their American dream through H-1B status, which allows foreign nationals to work temporarily in specialized occupations. However, for those who aspire to make the United States their permanent home, transitioning from non-immigrant H-1B visa to a green card is a significant milestone.
At the Immigration Law Office of Los Angeles, P.C., our team of experienced attorneys has helped many individuals and families achieve their goal of permanent residency. In this blog, we go over the steps involved when switching from H-1B status to green card holder and how a skilled immigration lawyer can make the journey easier.
What is an H-1B Status?
The H-1B is a non-immigrant status that permits foreign nationals to temporarily work in the United States in a “specialty occupation” – that is a job which requires at least a Bachelor’s degree in a specific specialty, or its equivalent in education, training and/or experience. This program is designed for American employers who want to hire foreign workers in advanced fields such as engineering, medicine, science, IT, finance, and more.
To qualify for H-1B status, you must have a job offer from a U.S. employer willing to sponsor an H-1B petition. The position must be in a specialty occupation (described above). If approved, you will hold H-1B status for three years, although it can be extended for an additional three years, up to a maximum of six years, and, under certain circumstances, until you become a permanent resident.
While the H-1B is a temporary working status, it is often sought by foreign professionals as a stepping stone towards obtaining permanent residency in the United States. Changing from an H-1B visa to a green card is a significant process that involves meeting specific and strict eligibility requirements.
BENEFITS OF TRANSITIONING FROM H-1B VISA TO GREEN CARD
As an H-1B visa holder in the United States, you’re already well-aware of the opportunities and experiences that come with being part of the skilled workforce contributing to the country’s growth. However, there comes a point when transitioning from an H-1B visa to a green card (permanent residency) becomes a logical and highly advantageous step. In this article, we’ll delve into the importance of this transition, highlighting the benefits that come with obtaining a green card for H-1B visa holders.
Long-Term Stability and Security
While the H-1B visa allows you to work in the U.S. for a specified period, a green card offers something much more valuable: long-term stability and security. By transitioning to permanent residency, you gain the peace of mind that comes with knowing you can remain in the U.S. indefinitely, without the constant concern of visa renewals or the potential for visa limitations.
Freedom to Choose Your Employment
H-1B visa holders are generally tied to a specific employer, as the visa is job-specific. Transitioning to a green card liberates you from this constraint, granting you the freedom to work for any employer you choose. You’re no longer restricted to a particular role or company, allowing you to explore new opportunities, negotiate better compensation, and pursue career advancements without the need for employer sponsorship.
Access to a Wider Range of Job Opportunities
A green card significantly broadens your horizons when it comes to job opportunities. You’re not limited to specific industries or job roles. This enhanced job market access empowers you to follow your passions, tap into emerging fields, and leverage your skills and qualifications in diverse sectors, thus maximizing your career potential.
Increased Job Flexibility
Obtaining a green card offers a level of job flexibility that H-1B visa holders often lack. You’re not beholden to the intricacies of visa regulations, such as the H-1B’s “dual intent” rules. This means you can explore part-time work, freelance opportunities, or even start your own business, giving you greater control over your professional path.
Pathway to U.S. Citizenship
A green card is often a significant step toward U.S. citizenship. While H-1B visas are temporary, obtaining permanent residency sets you on a path to naturalization. Becoming a U.S. citizen grants you the rights and privileges that come with it, including the right to vote and participate fully in the civic life of the country.
Transitioning to a green card can also benefit your immediate family. Certain family members, such as your spouse and unmarried children under 21, can be included in your green card application. This ensures their legal status and offers them opportunities for education and work in the U.S.
How Do You Transition from the H-1B to a Green Card?
The first step is for your employer to receive a PERM Labor Certification. PERM, short for Program Electronic Review Management, is an electronic system that companies use to file labor certification applications with the U.S. Department of Labor (DOL). The purpose is to allow the government to assess whether the company has genuinely tried to hire an American worker for the specific position.
Transitioning from an H-1B visa to permanent residency through the PERM labor certification process involves several steps. Here’s an overview of the process.
Obtaining PERM Certification
The PERM system was introduced in 2005 to simplify the process of obtaining an employment-based green card in the United States. Connected to the Department of Labor (DOL), PERM is an electronic system that reduces application time and paperwork.
To initiate the green card process, your employer must register with the DOL and obtain approval for a prevailing wage determination, which ensures that they will pay the full state-determined wage to their foreign workers. Currently this is typically taking around 8 months. Other steps include:
- Conducting recruitment processes to demonstrate that qualified U.S. citizens were not available for the job. This typically involves placing newspaper ads, conducting online recruitment, participating in job fairs, and more. The recruitment efforts and results must be documented in a report provided to the DOL.
- Filing the ETA Form 9089- Application for Employment Certification, either by mail or electronically. The DOL reviews the documents and either approves or denies the PERM certification, with a decision currently being made, in most cases within about 3 months of filing the application. But the process could take longer if one’s application is “audited” (subjected to detailed review) by the Department of Labor, and much longer If is assigned to “supervised recruitment”.
Filing Form I-140
After obtaining PERM approval, within 6 months your employer must submit Form I-140, also known as the Immigrant Petition for Alien Worker, to . This form verifies that you meet the requirements specified for the position in the PERM and will be paid the wage offered in it, which cannot be less than the “prevailing wage” referred to above, nor the wage which you have been offered effective when you become a permanent resident.
Filing Form I-485
Most people in the U.S. in H-1B status will opt to file a Form I-485, Application for Adjustment of Status, as soon as possible, after, or even at the same time as, their Form I-140. Whether and when that can be done depends upon the applicable “visa cut off date” which appears in the “Visa Bulletin” posted monthly online here: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
Determining exactly when you can file your Form I-485 is somewhat complicated. You start with your “priority date”, which is the date that your PERM was filed with DOL. Then you compare it to the applicable “visa cut-off date” published in the Visa Bulletin for your “immigrant visa classification” (which is indicated on your Form I-140) for your “country of chargeability” (typically, with some rare exceptions, the country you or your spouse [if any] were born in, whichever has the later “cut-off date”). Usually the applicable cut-off date is found in the “FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES” in the Visa Bulletin, but sometimes the USCIS will announce at www.uscis.gov/visabulletininfo that one may use the “DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS” visa cut-off date if it is later, which it usually is.
If after going through all of that, you determine that the applicable visa cut-off date is either “C” (for “Current”) or a date later than your priority date, then you may file an application for adjustment of status, unless you last entered the U.S. without “admission” (as a parolee, for example) or have been out of status or engaged in unauthorized employment for a period of more than 180 days since your last admission (assuming, as we are here, that you are applying for permanent residence on the basis of employment). Your spouse and unmarried children under 21 may also apply with you (and, in some instances, your unmarried children 21 or over, as determined by the “Child Status Protection Act” which will be discussed in an upcoming blog).
Even though your I-485 can be filed before your I-140 is approved, you cannot be granted adjustment of status until it is approved. There are, in principle, numerous other grounds for denial of a Form I-485, but in practice they should not be applicable to an H-1B worker who maintains his status in the U.S. and has not engaged in criminal activity. However, your I-485 cannot be approved unless the applicable visa cut-off date is later than your priority date according to the FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES chart. But even after this requirement is met it can take anywhere from a few months to several years to get permanent residency, based upon the processing time at the office where your application is pending. Current such estimated processing times can be found at https://egov.uscis.gov/processing-times/, but these are only estimates, and can change radically over time.
When your I-485 is approved you become a permanent resident. At this time you will be expected to work for the employer who filed an I-140 upon your behalf, unless you changed your sponsor to another employer offering you a job in the same or a similar location, and filed a Form I-485 Supplement J reflecting that change more than 180 days after filing your I-485. Then you would be expected to work for that new employer when your I-485 is approved.
Applying for an Immigrant Visa
If you are ineligible to adjust your status to permanent resident for the reasons stated in the paragraph above or simply prefer to be interviewed for permanent residency in your home country, then you will not file a Form I-485 but instead must apply for an immigrant visa. If this is your intention, your employer should so indicate on the Form I-140. Otherwise, when the petition is approved, your employer must file a Form I-824 to have the National Visa Center (NVC) notified of the approval of the petition. Once the NVC becomes aware of the approval of your I-140 it should assign you a case number. When your priority date becomes later than your applicable visa cut off date (according to DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS” chart), the NVC provides instructions for paying the applicable fees. Then, when the applicable visa cut-off date taken from the FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES chart becomes later than your priority date, you and your qualifying family members (as discussed above regarding adjustment of status) will be scheduled for an immigrant visa, almost always at a consulate in your country of citizenship. If all goes well, (as it should if you have obeyed all immigration and criminal laws) you will receive an immigrant visa stamp in your passport. As long as you use it to enter the U.S. before it expires you should become a permanent resident upon admission and the government will place a stamp in your passport as temporary evidence of your permanent residence. A few months later you should receive the physical “green” (Permanent Resident) card, signifying a successful transition from H-1B to permanent resident status.
Again, you will be expected to work for your I-140 petitioner in the job offered in that petition when you become a permanent resident but, unlike for persons filing a Form I-485, there is no provision for job changes after your I-140 is approved. If you fail to work for your petitioner in the offered position you could later face serious immigration consequences such as being placed in removal proceedings and/or denied naturalization. Same thing if you fail to work for your petitioner (on the I-140 or I-485 Supplement J) when you become a permanent resident based upon a Form I-485.
Getting Help from a Skilled Immigration Attorney Can Make the Difference
When you want to transition from an H-1B visa to a green card, there’s a lot involved:
- Extensive documentation
- Strict attention to current immigration regulations
- A thorough understanding of the procedures involved.
It’s a challenging and constantly changing journey, which is why a skilled immigration attorney can make a huge difference in the outcome.
At the Immigration Law Office of Los Angeles, P.C., we help individuals and employers make the switch from H-1B to green card. We are well-versed in the PERM labor certification process and can provide tailored strategies to maximize your chances of obtaining permanent residency in the United States. To learn more or schedule a consultation, please call (213) 375-4084 or contact us online.
Should You Get Your Own Immigration Lawyer?
If you decide to seek legal advice for the job switch, you may wonder if you can use the attorney who handled your original H-1B petition paperwork. Unfortunately, since this lawyer was hired by your employer, they aren’t in a good position to advise you if you later opt to work elsewhere. Further, and in any event, the attorney handling the new petition must be hired, and paid, by, your new employer. Nevertheless, you can certainly suggest to the new employer what attorney it should hire, and that will seldom be the attorney who handled your prior H-1B petition. You may also retain the attorney hired by your new employer (or a different one) yourself, but you can only pay them for advice pertaining to your legal status, and not for H-1B petition itself.
Contact an Experienced Los Angeles Immigration Lawyer
While changing employers while in H-1B status is possible, it’s important to follow the correct procedures and be aware of the potential challenges. An experienced Los Angeles immigration lawyer can guide you and/or your potential new employer through the process and help you address any immigration challenges you encounter en route. The Immigration Law Office of Los Angeles, P.C., can provide you with the guidance and support you need to ensure a smooth and successful transition. To learn more or schedule a consultation with one of our experienced H-1B lawyers, please call (213) 375-4084 or contact us online.
H-1B to Green Card FAQ
Can I get a green card through marriage with an H-1B visa?
Yes, it is possible to obtain a green card through marriage while holding an H-1B visa. Marriage to a U.S. citizen or a lawful permanent resident (green card holder) can be a pathway to U.S. permanent residency (a green card) for individuals in H-1B status.