What is the H1B to Green Card Process?
Most temporary US visas do not offer a path to US permanent residence. The H1B visa, however, is ‘dual intent’, which means holders can become eligible to apply for a Green Card once they reach the maximum stay of six years.
Why apply for a US Green Card?
As a Green Card holder, you can work and live lawfully in the US on an indefinite basis, without the requirement for additional work authorization. The Green Card serves as proof of your permanent residence status, for example when seeking employment in the US.
With US permanent residence, you may also freely travel in and out of the US. The only restriction is that leaving the US for more than six months risks loss of your permanent resident status.
Once you have held a Green Card for five years, you may become eligible to apply for US citizenship.
You can also sponsor relatives to hold their own Green Card, provided they meet the eligibility criteria.
The Green Card application process is, however, typically protracted and involves multiple stages, with no guarantee of a successful outcome.
This means going from the H1B to Green Card requires careful planning to ensure you follow the correct timings and process, and to avoid issues or even a refused application.
H1B visa expiry
H1B visas are generally issued for six years. Your I-94 card will state the date when your H1B period ends.
To be able to stay in the US after this six-year period, you will need to make an application to either renew your visa, or apply for a green card. You can also change this date if you continue to be employed by the same sponsor.
Without taking action to maintain lawful status, you will need to leave the US.
If you opt to apply for a Green Card you will need to be aware of the visa expiry rules. Since Green Card applications can take months or sometimes years to complete, H1B visa holders should ensure they are aware of the implications of their visa expiry date on their lawful status while making a Green Card application.
For example, you can retain lawful status if your H1B has expired provided your Green Card application is ‘pending’, or you may be permitted to extend your current status if you have an approved I-140 petition and are awaiting your priority date.
US Green Card requirements
There are several categories of US Green Card, such as family and employment-based Green Cards.
If you have a close family member in the US, you could apply for permanent residence based on your relationship. For example, if you are married to a US citizen, apply for a Green Card through marriage
With H1B status, you would usually apply for a Green Card through employment. To be eligible for this type of Green Card, you must meet one of the following sets of conditions:
First preference immigrant worker (EB1)
At least one of the following must apply:
- You have ‘extraordinary ability’ in science, the arts, education, athletics or business.
- You are an ‘outstanding’ researcher or professor.
- You are a multinational executive or manager who meets certain criteria.
Second preference immigrant worker (EB2)
At least one of the following must apply:
- You are a member of a profession that requires you to hold an advanced degree.
- You have ‘exceptional ability’ in science, the arts or business.
- You seek a national interest waiver.
Third preference immigrant worker (EB3)
At least one of the following must apply:
- You are a skilled worker. This means that your job requires a minimum of 2 years training or work experience.
- You are a professional. This means that your job requires at least a US bachelors degree or a foreign equivalent, and you are a member of the profession.
- You are an unskilled worker. This means that you will perform unskilled labour requiring less than 2 years training or experience.
In addition, there is also the EB-4 which covers religious workers and US Foreign Service employees, among others, and the EB-5 which covers individual who invest a minimum of $900,000 into a US business with at least ten employees.
Changing from H1B to Green Card
To change your status from H1B to Green Card, you will need to follow a strict process, starting with ensuring you have suitable sponsorship and PERM Labor Certification, to filing the required forms and supporting evidence.
Do you have a sponsoring employer?
The first step is to find an employer who will sponsor your application for a Green Card by offering you qualifying employment.
This may be the employer who you have worked for under your H1B status or you are permitted to find a new employer.
Your employer must file a Green Card through H1B visa petition on your behalf, including a PERM Labor Certification, an Application for Employment Certification and an Immigrant Petition for Alien Worker (form I-140).
PERM Labour Certification
PERM stands for Program Electronic Review Management.
Where you fall under the EB2 or EB3 Green Card categories, your sponsoring employer must file a PERM Labour Certification with the Department of Labor (DOL).
As part of the certification process, the employer must receive approval from the DOL regarding the prevailing wage determination. The employer provides information on the job, including duties involved, requirements and location. In response to this information, the DOL will issue a prevailing wage determination. This will form the base salary requirement for the job.
The employer must now demonstrate that there are no US workers suitable or available for the role by undertaking a recruitment process. This process requires that the job be advertised in two Sunday newspaper job postings, with the state workforce agency, and an additional three more times.
Once the employer can evidence that there are no US workers available for the job, they must file the Application for Employment Certification ETA form 9089.
Immigrant Petition for Alien Worker
Once the ETA Form 9089 has been approved, the employer is to file an Immigrant Petition for Alien Worker, known as form I-140.
The purpose of the I-140 is to demonstrate that the worker is eligible for a Green Card through employment and that the employer can afford to pay the worker the wage advertised in the PERM recruitment process.
The date that USCIS receive the I-140 is your priority date. You must wait until your priority date before you can take the next step.
Adjustment of Status
Once your priority date has arrived, you should apply for Adjustment of Status by completing the I-485 form. Information you will need to supply for the Adjustment of Status application includes:
- Full name
- Date and place of birth, with details of citizenship or nationality
- Address details
- Recent immigration history
- Passport or travel document details
- Place, date and details of last arrival into the US
- Status on form I-94
- Current immigration status
- Application Type or Filing Category – H1B visa holders seeking a Green Card should tick the ‘Employment-based’ option.
- Past addresses
- Employment history for the last 5 years
- Information about your parents
- Your marital status and history
- Information about your children
- Biographic Information, such as your ethnicity, height, etc.
- General eligibility and inadmissibility grounds, such as association with certain organisations or groups, or whether you have ever been denied entry into the US
- Criminal acts and violations
- Security and related information, such as whether you have ever been involved in espionage or terrorism
- Whether you have received public assistance from the US Government or are likely to need public assistance in the future
- Illegal entries and other immigration violations
- Removal, unlawful presence, or illegal re-entry after previous immigration violations
- Miscellaneous conduct questions
- Details of any interpreter you may have used to complete your application
- Details of any other person who may have helped you to complete your application, or completed it on your behalf
Importantly, once you’ve filed Form I-485, you should obtain a travel permit before taking any trips outside the United States.
After you have filed your I-485 form, accompanied by any supporting documents, you will be given an appointment at your local Application Support Centre (ASC). This purpose of the appointment is to provide your biometrics information. These will be used to verify your identity and carry out any background and security checks.
You will also be asked to sign an acknowledgement that the information provided in your application is complete, true and correct.
Failure to attend the appointment or sign the acknowledgement will mean that your I-485 form will be rejected.
You will not necessarily be required to attend an interview. This will be determined by USCIS, depending on your individual case.
If you are asked to attend an interview, you will be questioned on your application form, your supporting documents, and your work and personal situation. You should bring originals of all supporting documents with you, such as your passport or travel document.
You may be asked for additional documents to determine your eligibility. If you do not supply these documents, your application may be denied.
USCIS will notify you of their decision in writing. If your application is successful, you will initially be sent an approval notice, followed later by your Green Card.
If your application is denied, you will be told of the reasons why your application was unsuccessful and whether you may appeal the decision.
How long does it take to get a Green Card from H1B?
Most H-1B holders have to wait approximately two years after filing the family sponsorship form before you can continue the process by filing your Green Card application.
How long does a Green Card last?
Your Green Card lasts for ten years, at which point it may be renewed. There is no limitation on how many times you can renew your Green Card, provided you remain eligible.
The H1B to Green Card process can be lengthy and complex. NNU Immigration can help you through each of the stages, from compiling the relevant supporting documents to dealing with the authorities.
For advice about a Green Card application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.