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. In this guide, we set out the H1B visa to Green Card application process.

 

Benefits of Holding 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 rules

 

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 $800,000 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 an H1B visa?

 

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.

 

Need Assistance?

 

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.

 

H1B to Green Card FAQs

 

What is the first step to transition from an H1B visa to a Green Card?

The first step is typically obtaining a PERM Labor Certification from the Department of Labor. This certification is required to ensure that no qualified US workers are available for the position you hold.

 

Can I apply for a Green Card without my employer’s sponsorship?

In most cases, employer sponsorship is required. However, certain categories like EB-1 (for extraordinary ability) or National Interest Waiver (NIW) under EB-2 may allow you to self-petition.

 

How long does the H1B to Green Card process take?

The process can take several years, depending on factors like the employment-based category you apply under, your country of origin, and the current priority date for your category.

 

What happens if my H1B visa expires before my Green Card is approved?

You may be eligible for H1B extensions beyond the six-year limit if your Green Card process is underway. It’s important to maintain legal status in the US while waiting for Green Card approval.

 

Can I travel outside the US while my Green Card application is pending?

Yes, but you must ensure that your H1B visa is valid or obtain Advance Parole, which allows you to re-enter the US without abandoning your Green Card application.

 

What is Premium Processing, and should I use it?

Premium Processing is an expedited service offered by USCIS for certain petitions, including the I-140. It guarantees processing within 15 days for an additional fee. It can be useful if you need to speed up the process.

 

Can I switch employers while my Green Card application is in process?

Switching employers is possible under the AC21 (American Competitiveness in the 21st Century Act) if certain conditions are met, such as your I-140 being approved and your I-485 being pending for at least 180 days.

 

What are the common reasons for delays in the Green Card process?

Delays can occur due to backlogs in PERM processing, long waiting times for priority dates, requests for additional evidence (RFE), or processing delays at USCIS.

 

Do I need to maintain my H1B status while my Green Card application is pending?

Yes, it’s important to maintain valid H1B status to ensure you remain legally in the US during the entire Green Card application process.

 

What should I do if my PERM Labor Certification is denied?

If your PERM is denied, you can either file an appeal or reapply. It’s crucial to work with your employer and possibly an immigration attorney to address the reasons for denial before reapplying.

 

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.

 

Glossary

 

Term	Definition
H1B Visa	A non-immigrant visa that allows US companies to employ foreign workers in specialty occupations requiring specialized knowledge.
Green Card	An identification card that grants a foreign national the right to live and work permanently in the US as a lawful permanent resident.
PERM Labor Certification	A process by which the US Department of Labor certifies that no qualified US workers are available for the job offered to a foreign worker.
Form I-140	An Immigrant Petition for Alien Worker filed with USCIS to request a Green Card on behalf of a foreign employee.
Adjustment of Status (I-485)	The process of applying for a Green Card from within the US, allowing the applicant to change from non-immigrant status to permanent resident.
Consular Processing	An alternative to Adjustment of Status, where a Green Card is obtained through a US consulate or embassy outside the US.
Premium Processing	An expedited service offered by USCIS that guarantees processing of certain petitions, including I-140, within 15 days for an additional fee.
Priority Date	The date when a labor certification or immigrant petition is filed with the US government, used to determine an applicant’s place in line for a Green Card.
Request for Evidence (RFE)	A notice from USCIS asking for additional information or documentation before a decision can be made on a visa or Green Card application.
AC21 (American Competitiveness in the 21st Century Act)	A law that allows H1B visa holders to change jobs and extend their H1B status beyond six years under certain conditions.
Advance Parole	A document that allows foreign nationals to re-enter the US after traveling abroad without abandoning their pending Adjustment of Status application.
USCIS	United States Citizenship and Immigration Services, the government agency responsible for overseeing lawful immigration to the US.
EB-1	A category for employment-based Green Cards reserved for individuals with extraordinary ability, outstanding professors or researchers, and multinational executives or managers.
EB-2	A category for employment-based Green Cards for professionals with advanced degrees or exceptional ability in their field, including those eligible for a National Interest Waiver.
EB-3	A category for employment-based Green Cards for skilled workers, professionals, and other workers.
Immigration Lawyer	A legal professional specializing in immigration law, who can provide advice and assistance with visa, Green Card, and citizenship applications.