Are you eligible for H1B Visa Permanent Residency?

 

One of the many advantages of the H1B visa is that it is ‘dual intent’ and offers holders a path to US permanent residence. After six years in the US as an H1B worker, you can become eligible to apply for a US Green Card, which will allow you to remain in the USA indefinitely.

The path to a US Green Card, however, is not always straightforward. The process of going from an H1B visa to lawful permanent residence status involves multiple stages and can take many years. This makes it important for H1B visa holders to start preparing in good time for their application, to ensure they meet the Green Card requirements and have the documentation in place to prove their eligibility.

In this guide, we explain the eligibility criteria for H1B visa holders to make a US permanent residency application.

 

H1B to permanent residence requirements

 

Qualifying period of H1B status

 

The general rule is that H1B visas last a maximum of six years. They are typically issued for an initial three-year period, and you can then apply to extend your status under the H1B visa for a further three years.

H1B extensions require you to submit an application to evidence that you continue to meet the visa requirements through qualifying work and sponsorship by an authorized employer.

In advance of the six-year H1B period ending, you either have to leave the US or make an application to change your status to a different immigration category, for example switching into the O visa or applying for a Green Card.

In most cases, it is not possible to stay in the US under a further period of H1B leave after the initial six-year H1B period. Instead, you would have to leave the country for at least 12 months before becoming eligible for a subsequent six years of H1B status. This entails making a new application under the H1B visa lottery process.

There are, however, exceptions to this six-year rule.

First, if you spent time outside the US during your H1B period, and you can provide sufficient evidence of this, you may be able to ‘recapture’ this time when it not to be counted towards your maximum period of H1B stay in the US.

Second, if you can show you work in the US intermittently, or on a seasonal basis, or you spend less than six months in the US per year, or you work part-time but reside abroad and commute to the US, you would be exempt from the six-year rule and your H1B status can be extended indefinitely.

Third, you would be allowed to extend your H-1B visa beyond the six years if you have an approved I-140 petition and the reason you have not yet filed your Green Card application is because your priority date is not current (see below for details of the H1B to Green Card application process).

 

Employment sponsorship

 

You must be sponsored by an authorized employer to remain in the US under the H1B route and to apply to change status from the H1B to a Green Card. This authorization takes the form of a Labour Condition Application, submitted to and granted by the US Department of Labour.

H1B status and a subsequent Green Card application would be reliant on continued eligible sponsorship and employment by an authorized employer. This could be your current H1B employer or it could be a new employer, but in either case, they must be qualified to sponsor non-US workers.

Your sponsoring employer files for a Green Card through Employment on your behalf. This submission will include a PERM Labour Certification, an Application for Employment Certification and an Immigrant Petition for Alien Worker.

 

Which category of Green Card?

 

The fastest route to a US Green Card is generally applying as the relative of a US citizen or someone with US lawful permanent residence status. This means if you are an H1B visa holder and you are married to a US citizen, you should apply for your Green Card based on your marriage.

If you do not qualify on the basis of having a close family member already in the US, you would petition for the Green Card through employment.

There are five different categories of US Green Card through employment. For an H1B visa holder to apply for a Green Card through employment, you must come under one of the following categories:

• EB-1 First preference immigrant worker – one or more of the following must apply:
  • Extraordinary ability in the sciences, the arts, education, athletics or business
  • Outstanding researcher or professor
  • Multi-national executive or manager who meets certain criteria
• EB-2 Second preference immigrant worker – one or more of the following must apply:
  • Member of a profession that requires an advanced degree
  • Exceptional ability in the sciences, the arts or business
  • Seeking a national interest waiver
• EB3 Third preference immigrant worker – one or more of the following must apply:
  • Skilled worker with a minimum of 2 years training or work experience
  • Professional (a member of a profession) with a US bachelor’s degree or foreign equivalent
  • Unskilled worker who is capable of performing unskilled labour that requires less than 2 years training or experience
• The EB-4 covers religious workers and US Foreign Service employees, among others.
• The EB-5 covers investors who put a minimum of $900,000 into a US business that has at least ten employees.

 

H1B visa to US permanent residency process

 

For an H1B visa holder who meets all the eligibility criteria to apply for US permanent residency, the process includes a number of steps to be taken by both you and your sponsoring employer.

 

Step 1: PERM Labour Certification

 

This step is only necessary for EB2 and EB3 Green Card categories. Your sponsoring employer files a PERM Labour Certification with the Department of Labour (DOL) in your name.

The purpose of the PERM Labour Certification is to ensure that the employer will pay a wage deemed to be appropriate to the job, with no detriment to other workers in similar jobs or to the employee.

Information must be provided by your employer about your job (duties involved, requirements and location). The DOL will then issue a prevailing wage determination. This will form the base salary requirement for the job.

The employer must also show that no US workers are suitable or available for the job by undertaking a recruitment process.

 

Step 2: Form 9089 Application for Employment Certification

 

Once the employer can provide evidence that there are no US workers available to take the job, they file the Application for Employment Certification ETA form 9089.

 

Step 3: Form I-140 Immigrant Petition for Alien Worker

 

Once the ETA 9089 has been approved, the employer files an Immigrant Petition for Alien Worker form I-140.

The purpose of this form is two-fold. Firstly, it should show that the worker is eligible for a Green Card through employment. Secondly, it should show that the employer can afford to pay the worker the wage advertised in the recruitment process undertaken as part of the PERM process.

When your I-140 is received by USCIS, you will be given your priority date. You will now have to wait until your I-140 has been approved and your priority date has become ‘current’ before you proceed with the next stage of your H1B to permanent residence application.

You can check the status of your priority date in USCIS’ regular visa bulletin.

 

Step 4: Apply for Adjustment of Status

 

Once your I-140 has been approved and your priority date has become current, the next stage is to apply for Adjustment of Status. This requires you to complete the I-485 form and file it with your local USCIS office. The I-485 relates to the following information:

• Full name and any previous names
• Date and place of birth, with details of your citizenship or nationality, current or past
• Address
• Your recent immigration history including:
  • Passport or travel document details
  • Place, date and details of your last arrival into the US
  • Status on your form I-94
  • Current immigration status
• Application Type or Filing Category: An H1B visa holder seeking a Green Card should tick the ‘Employment-based’ option.
• Past addresses
• Last 5 years’ employment history
• Information about your parents
• Your marital status and history
• Information about your children
• Your biographic information such as your ethnicity and height, etc.
• General eligibility and inadmissibility grounds (e.g. 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 (e.g. whether you have ever been involved in espionage or terrorism)
• Details of any public assistance you have received from the US Government or are likely to need in the future
• Immigration violations
• Removal, unlawful presence, or illegal re-entry after previous immigration violations
• 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

 
This form should be filed with your supporting documents. Once filed, an appointment will be arranged for you at your local Application Support Centre so that you can provide your biometrics information (finger prints, photo and signature) to verify your identity and carry out background and security checks.

USCIS will decide whether you should be further interviewed, depending on your individual situation.

If you are asked to attend an interview, you will be questioned on your application and your circumstances. When attending the interview, take originals of any supporting documents submitted as part of your application and your passport or travel document.

The final decision on your application for US permanent residency will be forwarded to you in writing. In the case of a successful application, you will be sent an approval notice and later on, your Green Card.

 

How long does it take to go from H1B to permanent residence?

 

Green Card processing times can vary, but as a guide you can expect to wait between 6 to 18 months for PERM Certification, while I-140 petition approval will depend on your nationality and priority date.

 

Need assistance?

 

The H1B visa route to US permanent residency is not always straightforward. It is crucial to ensure you work to the correct timescales and ensure eligibility and that your application documentation is comprehensive and compliant

As specialist US immigration attorneys, we can advise and guide you through the process. For advice from US visa experts, contact us.

 

This article does not constitute direct legal advice and is for informational purposes only.