H-1B visa is especially popular because it is considered “dual intent” which means the visa holder can not only enter the U.S. but also seek lawful permanent resident status (green card status). In this guide, you’ll learn the H1B to green card process including steps for the best chances of approval.
Important Update for H-1B Lottery
USCIS has officially concluded the selection process for H-1B cap registrations for the Fiscal Year 2025. Individuals who have been fortunate enough to receive notification of their selection are encouraged to take prompt action. Employers can download the official selection notice, which contains essential details advising both beneficiaries and employers to ensure the timely submission of a fully prepared H-1B petition.
Complete H1B application can be submitted online or by mailing the filing to USCIS between April 1, 2024 through June 30, 2024 which is the deadline for submission. Reflecting on the number of selections received by our firm, it appears that the selection rate hovered around 15-16%. Percentage suggests a substantial influx of H-1B registrations this year, underscoring the continued demand for skilled foreign workers in the United States. Schedule a consultation with our H-1B legal team to get on the right track to an H-1B approval!
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Some visa categories only allow renewal for the same status, while some only permit changing to another temporary status. For some visas, there are no options for renewal or changing of status as those in those categories will need to return to their country of origin upon expiration of their status. One of the superior advantages the H-1B Visa has over most other nonimmigrant U.S. visas.
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. Process is known as adjustment of status. 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
Process of achieving a green card if you are on an H-1B visa is as follows:
- Step 1: Find a Qualified U.S. Employer
- Step 2: PERM Labor Certification to Be Filed By Your Employer
- Step 3: Form I-140 Petition
- Step 4: Wait for the Priority Date to Become Current
- Step 5: File Form I-485
Before you start it is crucial to understand a few crucial points:
Adjustment of Status: Submit an I-485 USCIS to adjust your status from H-1B to green card (lawful permanent resident) status. 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).
If Priority Date Is Not Current: 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. Determine your priority date by looking on the I-797 sent to you from USCIS approving your I-130.
Maintaining Status While Green Card is Processing: 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.
Step 1: Find a Qualified U.S. Employer
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. Most of the U.S. employment-based green card categories must be sponsored by an employer. Can be either your current H-1B employer or a different employer. Some requirements must be met before an employer can qualify to sponsor an employee’s green card application.
If your current employer doesn’t meet these criteria, you may need to change your job before you can commence your application process. Not all H-1B job positions meet green card adjustment requirements. For this reason, you may also need to change your current job position or take on roles with bigger responsibilities to garner the required work experience for your choice of a green card out of the available employment-based categories.
Step 2: PERM Labor Certification to Be Filed By Your Employer
Then, your employer must obtain a PERM Labor Certification. 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.
Step 3: Form I-140 Petition
Once the PERM has been approved, your employer must then file an I-140 Immigration Petition for Alien Worker. On Form I-140, your employer must prove they are in good financial shape, as that is needed to demonstrate their ability to pay the salary for the job position. Form must be submitted with the approved PERM labor certification and a filing fee. If your petition is approved, then the USCIS will send you an Approval Notice. Indicates that you can move to the next stage of your green card application process. Keep in mind that an approved I-140 doesn’t mean your status has been adjusted from nonimmigrant to immigrant. You will need to wait until the end of the 5th step, which is I-485 petition approval.
Step 4: Wait for the Priority Date to Become Current
USCIS receives your petition, that date is your priority date. Need to wait until your priority date becomes current before moving on to the final step. Check the latest visa bulletin to learn more about current dates.
Step 5: File Form I-485
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.
H-1B to Green Card Processing Times
H-1B to green card processing time in 2023 is approximately 6-18+ months.
- PERM Labor Certification can take 6-18 months with an audit.
- I-140 approval depends on how soon your priority date will be current.
- 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.
- 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. See the current wait times.
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 faster than someone from a different country. 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.
When to Apply for a Green Card After H-1B?
H-1B holder, you can start your status adjustment to green card status as soon as your employer is ready to sponsor you. Each year, there are tens of thousands of employment-based green card applications submitted for processing. Process involves various organizations, which include the Department of Labor (DOL) and the United States of Citizenship and Immigration Services (USCIS). On average, the DOL process takes about 6 months, and the USCIS process also takes several months.
For example, a look into the DOL statistics for PERM Labor Certification FY 2023 Q2 shows that the H-1B employers had the largest number of employment-based PERM applications for a green card. Out of 74,579 applications for the first two quarters of the year, 32,386, which was 66.3% of the total figure came from the H-1B category.
Further review of the top 5 occupations included:
- Software Developers, Applications
- Software developers, Systems Software
- Information Tech, Project Managers
- Computer Systems Analysts
- Statisticians
Goes to show how competitive the process is and why the preparation work must be started as early as possible. Factor in the possibility of an audit review in your application, which can further extend the processing time to more than a year. For this reason, it may be costly to delay your application, as you could be out of status if your H-1B expires when you haven’t commenced your green card application process.
Green Card Options After H-1B
There are a number of different avenues you can take after being on the H-1B visa:
- EB-1 – Reserved for individuals with extraordinary ability, outstanding professors and researchers, and multinational executives or managers.
- EB-2 – Requires either an advanced degree or exceptional ability in your field.
- EB-3 – Includes skilled workers, professionals with bachelor’s degrees, and other workers with less than two years of experience.
- Family-Based Green Cards – If you have close family members who are U.S. citizens or permanent residents, they may be able to sponsor you for a family-based green card.
- EB-5 – Requires a significant investment in a new commercial enterprise that creates jobs in the U.S. It can lead to a green card for the investor and their immediate family.
- Diversity Visa Lottery – this is a random lottery that provides a limited number of green cards to nationals of countries with low rates of immigration to the U.S.
H-1B to Green Card Fees
- Fees associated with getting a green card will vary depending on the path but these are some possible ones:
- Immigrant Petition for Alien Worker (Form I-140) Fee: This is required for employment-based green cards. The fee is $700 or up to $2,805 if you elect for premium processing.
- I-485 Adjustment of Status Fee: $1,140 (for applicants aged 14-78), plus an additional $85 for biometric services.
- Labor Certification (if applicable): Varies depending on the advertising and recruitment methods.
- Medical Examination: You may be required to undergo an exam for the green card application and fees vary.
- Translation and Document Costs: If any documents need translation or if additional documentation is required, there may be associated costs.
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. Find out if getting a promotion while on H-1B status will affect your green card.
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 oftentimes 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)
EB-2 green card is for professionals holding advanced degrees or individuals with exceptional ability in the arts, sciences, or business.
What is Required?
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. 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 approval for your case.
Employment Third Preference (EB-3 Green Card Process)
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.
Can I stay with the same employer and do EB-3 to EB-2 porting?
In some cases, you can stay with the same employer but know that it will be more heavily scrutinized by USCIS because it has been exploited in the past. The EB-2 job should also be 50% different from the EB-3 job.
Be prepared to defend yourself against the following questions:
- Does this promotion make sense? Are you being promoted from “Marketing Analyst” to “Marketing Manager” or to “Senior Product Manager”?
- Is the job a well-established position within the company?
- Is your employer actively searching for a worker to replace your EB-3 position?
- How many other employees has your employer helped with EB-3 to EB-2 porting?
Speak with your immigration lawyer if you are considering this delicate process.
H-1B to Citizenship
Process to become a citizen goes like this:
- Obtain a green card through the processes outlined 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.
- File an 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.
FAQs
What is the first step in transitioning from an H-1B visa to a green card?
First step is for your employer to obtain a PERM Labor Certification from the Department of Labor. Certification verifies that there are no qualified U.S. workers available for the position.How long does the PERM Labor Certification process take?
PERM Labor Certification process can take anywhere from 6 to 18 months, depending on whether an audit is required.What happens after the PERM Labor Certification is approved?
Once the PERM Labor Certification is approved, your employer can file Form I-140 (Immigrant Petition for Alien Worker) with USCIS.How long does it take to get Form I-140 approved?
Processing time for Form I-140 can vary, but it generally takes several months. Premium processing is available for an additional fee, which expedites the process to 15 calendar days.What is a priority date, and why is it important?
Priority date is the date when your employer files the PERM Labor Certification. It determines your place in line for a green card and is crucial for tracking visa availability.What is the next step after Form I-140 is approved?
Once Form I-140 is approved and your priority date is current, you can file Form I-485 (Application to Register Permanent Residence or Adjust Status) to adjust your status to a green card holder.How long does it take to process Form I-485?
Processing time for Form I-485 can range from 8 to 14 months, depending on various factors such as the applicant’s location and the USCIS workload.Can I continue working while my Form I-485 is pending?
Yes, you can continue working on your H-1B visa while your Form I-485 is pending. Apply for an Employment Authorization Document (EAD) to work in any job.What is the total processing time for transitioning from an H-1B visa to a green card?
Total processing time can vary widely, but it generally takes between 1 to 3 years, depending on the specific circumstances and any potential delays.Are there any alternatives to the PERM Labor Certification process?
Yes, certain categories, such as EB-1 (for individuals with extraordinary ability) and National Interest Waiver (NIW) under EB-2, do not require a PERM Labor Certification.
