Key Takeaways:
- H1B visa holders can apply for a green card through their employer under the EB-2 or EB-3 categories.
- The green card process involves obtaining a PERM Labor Certification and filing Form I-140.
- The timeline for obtaining a green card can vary, and it’s important to maintain legal status throughout the process.
Understanding the Transition from H1B to Green Card
Navigating the path from an H1B visa to a U.S. permanent residency (green card) is a common route for many skilled workers seeking to make the United States their long-term home. But one of the most pressing questions on their minds is, “How soon can I apply for a green card after obtaining my H1B visa?” This blog post aims to provide clarity on that critical question and outline the green card application timeline, helping H1B visa holders to understand the process and what can be expected.
The Basics of H1B and Green Card
Before we dive into timelines, it’s essential to understand the basics of the H1B visa and the green card. The H1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A green card, on the other hand, offers permanent residency, allowing you to live and work in the U.S. indefinitely.
Eligibility to Apply for a Green Card
As an H1B holder, you are eligible to apply for a green card through your employer under the EB-2 or EB-3 employment-based green card categories. However, there are several steps that you and your employer must take before your green card application (Form I-485, Application to Register Permanent Residence or Adjust Status) can actually be filed.
Step 1: The PERM Labor Certification
Before you can proceed with your application, your employer must obtain a PERM Labor Certification on your behalf, which proves that there are no qualified U.S. workers available for your position, and that your employment will not negatively affect the wages and working conditions of U.S. workers. The PERM process includes a recruitment phase which can take several months.
** It’s important to note that the timeline for the PERM process can vary greatly depending on a variety of factors such as the Department of Labor’s workload and audit requirements.
Step 2: Filing the Immigrant Petition (Form I-140)
After the PERM Labor Certification is approved, your employer can file the Form I-140, Immigrant Petition for Alien Workers. This form establishes your eligibility for an employment-based green card, and its processing time can vary. Premium processing is an option that can significantly shorten this stage by expediting the petition’s review, typically to 15 calendar days.
Sub-Heading: The Priority Date and Visa Bulletin
Once the I-140 is filed, you get a priority date, which is essentially your spot in the green card queue. Employment-based green cards are subject to annual limits, and the priority date determines when a visa number will be available for you. The U.S. Department of State’s Visa Bulletin is updated monthly and can be consulted to check the progress of visa availability.
When Can the Green Card Application Be Filed?
You can file Form I-485, the actual application for a green card, when the priority date becomes current according to the Visa Bulletin. It’s this step that prospective immigrants are most curious about regarding the H1B to green card timeline. In the best-case scenario, if there is no backlog in your visa category and your priority date is current, you can file Form I-485 immediately after your I-140 is approved.
However, because oversubscription or backlogs often occur with employment-based categories, you might have to wait months or sometimes years before being able to file the Form I-485.
The Adjustment of Status Process
Filing Form I-485 initiates the adjustment of status process, during which you are technically applying to adjust your status from an H1B visa holder to a permanent resident. This processing time can also fluctuate but generally takes anywhere from 8 to 14 months, during which you may need to attend a biometrics appointment and an interview.
Continuing to Work on H1B While Awaiting Adjustment
One of the benefits of having an H1B visa while applying for a green card is that you can continue working on the basis of your H1B status. Furthermore, with a pending I-485, you may apply for an Employment Authorization Document (EAD) that grants work authorization during the adjudication process. Obtaining an EAD can provide added job flexibility and security as you await your green card.
Maintaining Legal Status
It’s imperative to maintain your H1B status while your green card application is pending. Any unlawful presence in the U.S. could result in undesirable legal consequences and impact your green card approval.
Conclusion: Patience and Preparation Are Key
While transitioning from an H1B visa to a green card can be lengthy, it’s important to be patient and methodical throughout the process. Preparation and comprehension of each step can significantly influence the green card application timeline. Staying informed on the latest immigration policies and maintaining legal status will help in navigating this journey successfully.
Always consult with immigration professionals or refer to official resources such as
USCIS for guidance tailored to your specific situation.
To conclude, the sooner you start your green card process, the better. Considering variables such as the PERM labor certification, visa availability, and priority dates, it’s prudent to initiate the process as early as possible in your H1B journey, ideally as soon as you and your employer are ready to commit to the permanent residency goal.
Still Got Questions? Read Below to Know More
Can I change employers while waiting for my green card if I have an approved I-140 but my priority date is not current?
Yes, you can change employers while waiting for your green card if you have an approved I-140 (Immigrant Petition for Alien Worker) and your priority date is not yet current. This is permissible under the American Competitiveness in the Twenty-first Century Act (AC21), specifically Section 106(c). However, certain conditions must be met:
- Job Portability under AC21: Your new job offer must be in the same or a similar occupational classification as the job for which the original petition was filed.
- 180-day rule: A Form I-485 (Application to Register Permanent Residence or Adjust Status) based on the approved I-140 must have been filed and remained unadjudicated for at least 180 days.
Before making the change, it’s important to notify US Citizenship and Immigration Services (USCIS) of your intent to use the AC21 portability provision. This is usually done by sending a letter to USCIS along with evidence of the new job offer. It’s advisable to consult with an immigration lawyer to ensure the transition goes smoothly and to handle any complications that may arise.
For more information, you can visit the USCIS AC21 section on the official website: USCIS – AC21. This source provides authoritative guidance on how to navigate job changes during the green card application process.
Remember, even though you may be eligible to change employers, keeping track of your priority date is crucial, as you will not be able to adjust your status to a permanent resident until your priority date becomes current. You can check the visa bulletin for updates on priority dates: Visa Bulletin.
Can I travel back to my home country while my green card application is pending if I’m on an H1B visa?
Certainly, if you are currently in the United States on an H1B visa and have applied for a green card (adjustment of status), you have the option to travel back to your home country even while your green card application is pending. However, there are a few important considerations you should be aware of before making any travel plans:
- Advance Parole (AP): Normally, H1B visa holders who have a pending I-485 application for adjustment of status are advised to obtain Advance Parole before leaving the country to ensure they can return to the U.S. without jeopardizing their application. However, as an H1B visa holder, you are exempt from this requirement due to the “dual intent” nature of your visa. Dual intent means you can hold a temporary visa status while simultaneously seeking permanent residency.
Maintaining H1B Status: It is crucial to maintain your H1B status, meaning you should have a valid H1B visa stamp in your passport and a job to return to in the U.S. Your travel should not be seen as abandoning your current H1B employment.
Valid Visa: Ensure that your H1B visa is still valid for re-entry into the United States. If your visa stamp has expired, you will need to obtain a new one from a U.S. consulate or embassy abroad before you can return.
Before making any travel plans, it’s always best to consult with an immigration attorney or check the U.S. Citizenship and Immigration Services (USCIS) official resources to confirm the most current policies regarding travel during the green card application process. Here is where you can find additional information on H1B visas and travel: USCIS – H1B Visa and USCIS – International Travel as a Permanent Resident. Remember that immigration policies can change, and staying up to date with the latest information is important to ensure a smooth re-entry to the U.S.
What happens if I lose my job while on H1B status during the green card application process?
If you lose your job while on H1B status during the green card application process, it’s important to understand the implications and what steps you should take next. Here’s what generally happens:
- Grace Period: The U.S. Department of Homeland Security allows a 60-day grace period for H1B holders who lose their jobs. During this time, you can stay in the U.S. and look for another employer to sponsor your H1B visa. This grace period cannot be extended, so it’s crucial to act promptly.
“An H1B nonimmigrant can have one grace period up to 60 consecutive days during each authorized validity period (admission).” – U.S. Citizenship and Immigration Services (USCIS)
New Job and H1B Transfer: If you find a new job within the grace period, your new employer must file an H1B transfer petition on your behalf. As long as the petition is filed before the grace period ends, you can start working with the new employer upon receipt of the transfer petition by USCIS.
Impact on Green Card Process: Losing your job can affect your green card application depending on the stage of the process you are in. If you have an approved I-140 (Immigrant Petition for Alien Worker) and your job loss occurs after 180 days of I-140 approval, your green card application may still be valid under the American Competitiveness in the Twenty-first Century Act (AC21). You may change employers if the new job is in a similar occupation as the one in the approved I-140 petition.
“The American Competitiveness in the Twenty-first Century Act (AC21) provides two important protections for certain H-1B workers seeking lawful permanent residence through their employment.” – USCIS
It’s advisable in a situation like this to act quickly to secure new employment and consult an immigration attorney. They can provide personalized advice and help navigate the complexities that arise when changing jobs during the green card application process. Remember that maintaining lawful immigration status is crucial throughout this period.
If my spouse is also on an H1B visa, does my green card application affect their status?
If you are applying for a green card (permanent residency in the United States) and your spouse is on an H1B visa, your application generally does not affect their H1B status. The H1B is a non-immigrant visa that allows individuals to work in the U.S. on a temporary basis, while a green card application is for those seeking permanent residency. The processes for an H1B visa and a green card are separate, and one does not inherently impact the other. It’s important to note the following:
- Your spouse can maintain H1B status: As long as your spouse continues to comply with the H1B visa requirements, such as working for their H1B sponsor employer, their visa should remain valid.
- H1B is a dual intent visa: The H1B is one of the few visas that recognize “dual intent,” which means an H1B visa holder can apply for a green card without jeopardizing their H1B status.
- Advantages of keeping H1B status: Maintaining H1B status even when a green card application is in process can be beneficial. It can offer flexibility, especially if there are issues or delays with the green card process.
For more detailed information, refer to the United States Citizenship and Immigration Services (USCIS) website or consult an immigration attorney for personalized advice based on your situation. It is always recommended to stay informed about the current immigration laws and regulations which are subject to change.
Here are some useful resources:
– USCIS Green Card Information: Green Card
– USCIS H1B Information: H1B Visa
Remember, if there are any changes in your employment or immigration status, or if you have specific concerns about your green card application impacting your spouse’s H1B visa, it’s wise to consult directly with an immigration attorney to ensure you’re following the appropriate steps for your individual circumstances.
What are my options if my green card application is denied but I’m still on an H1B visa?
If your green card application is denied and you are still on an H-1B visa, you have several options to consider:
- File a Motion to Reopen or a Motion to Reconsider: If you believe the denial was based on incorrect application of the law or policy, you can file a motion with U.S. Citizenship and Immigration Services (USCIS) to have your case re-evaluated. You must do this within 30 days of the decision.
USCIS states, “A motion to reopen must state the new facts that will be provided if the motion is granted and must be accompanied by affidavits or other documentary evidence.”
More details on this can be found here: USCIS Motions
Reapply: If new circumstances have changed that might affect the outcome of your application, you can usually reapply for your green card. This involves starting the process over and submitting a new application with all the required documentation and fees.
Appeal: For some types of green card denials, you have the right to appeal the decision to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). The deadline for filing an appeal is very strict (usually 30 days from the date of the decision).
As per USCIS, “When you receive a decision on an application or petition, it often includes information on whether the decision may be appealed and where to file your appeal.”
Check the official appeal process here: USCIS Appeals
While exploring these options, it’s crucial to maintain your H-1B status, ensuring that you continue to work for your H-1B sponsor and comply with all the terms of your visa. Staying in status keeps you legally in the United States while you consider your next steps. For personalized guidance, it is often beneficial to consult with an immigration attorney who can provide tailored advice based on your specific situation.
Learn Today:
Glossary/Definitions:
- H1B visa: A non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations.
Green card: An official document, also known as a Permanent Resident Card, that grants an individual permanent residency in the United States, allowing them to live and work in the country indefinitely.
EB-2: Employment-Based Second Preference category for the green card application, reserved for professionals with advanced degrees or individuals of exceptional ability.
EB-3: Employment-Based Third Preference category for the green card application, reserved for professionals, skilled workers, and other workers.
PERM Labor Certification: This certification is obtained by the employer to prove that there are no qualified U.S. workers available for a position and that employing a foreign worker will not negatively impact U.S. workers’ wages and working conditions.
Department of Labor (DOL): The U.S. government agency responsible for enforcing labor laws and regulations, including the oversight of the PERM Labor Certification process.
Form I-140: The Immigrant Petition for Alien Workers that a petitioner (employer) files on behalf of the beneficiary (employee) to establish their eligibility for an employment-based green card.
Premium processing: An expedited processing option for the Form I-140 petition that allows for a faster review, typically within 15 calendar days, by paying an additional fee.
Priority date: The date on which the Form I-140 is filed, establishing the beneficiary’s spot in the green card queue. It determines when a visa number will become available for them.
Visa Bulletin: A monthly publication by the U.S. Department of State that provides information on the availability of immigrant visa numbers, including the priority dates that are currently being processed.
Form I-485: The Application to Register Permanent Residence or Adjust Status, also known as the green card application, which is filed by the beneficiary to adjust their status from a temporary visa holder to a permanent resident.
Adjustment of status: The process of changing one’s immigration status from a temporary visa holder, such as an H1B visa holder, to a permanent resident.
Biometrics appointment: An appointment where the applicant provides fingerprints, photographs, and signature for identification purposes during the green card application process.
Employment Authorization Document (EAD): A document that grants temporary work authorization to individuals with pending green card applications, allowing them to work legally in the United States.
Unlawful presence: The period of time in which an individual stays in the United States beyond their authorized stay under a visa or without lawful status. Being unlawfully present can have adverse legal consequences and affect the approval of a green card application.
USCIS: The United States Citizenship and Immigration Services, a government agency under the Department of Homeland Security responsible for handling immigration-related processes and services. They provide official resources and guidance on immigration matters.
And there you have it, a comprehensive understanding of the transition from H1B to Green Card! Remember, each step in the process takes time and patience, but with the right knowledge and preparation, you can navigate it successfully. If you’re looking for more in-depth guidance and resources, be sure to check out visaverge.com. Good luck on your journey to permanent residency!
This Article in a Nutshell:
Transitioning from H1B to Green Card is a common path for skilled workers wanting to settle in the US. After obtaining an H1B visa, you can apply for a green card through your employer. The process includes obtaining a PERM Labor Certification, filing an Immigrant Petition, and waiting for your priority date to become current before submitting the actual green card application. Patience is key.
