H1B visas are unique in U.S. immigration, offering a dual-intent provision that allows holders to seek permanent residency while maintaining their non-immigrant status. This attribute enables H1B visa holders to transparently pursue green card ambitions. To transition to a green card, H1B holders must meet specific criteria related to employment-based green card categories, often connected to their professional expertise and job roles in the U.S.
How to Transition from an H1B Visa to a Green Card
Transitioning from an H1B visa to a green card is a multi-step process that requires careful planning and timely application to ensure compliance with U.S. immigration laws and to avoid any status complications. The process typically begins with the H1B visa holder’s employer sponsoring them for an employment-based green card.
The key stages in this transition include obtaining PERM Labor Certification, submitting Form I-140 (Immigrant Petition for Alien Worker), and finally, applying for an adjustment of status using Form I-485. It’s crucial to initiate this process well before the H1B visa expires to ensure seamless transition and maintain legal status in the U.S. and crucial to retain an experienced immigration lawyer.
Apply for PERM Labor Certification
The first critical step in this journey is obtaining the PERM Labor Certification, a process managed by the U.S. Department of Labor (DOL). This certification verifies that there are no qualified U.S. workers available for the job position, thereby justifying the employment of a foreign national. The employer must conduct a series of recruitment activities to test the labor market before filing the PERM application.
This process can be complex and time-consuming, often taking several months to complete. The PERM process may also be subject to an audit by the DOL, which can significantly extend the timeline. An audit requires the employer to provide additional evidence and documentation, thus making it imperative to maintain meticulous records and adhere to all regulations throughout the process.
Submit Form I-140
Once PERM Labor Certification is approved, the next step involves filing Form I-140, Immigrant Petition for Alien Worker, with the U.S. Citizenship and Immigration Services (USCIS). This form is a petition by the employer on behalf of the foreign worker. It requires detailed information about the employer, the job position, and the employee’s qualifications.
A critical aspect of this stage is the priority date, which is the date when the Form I-140 is filed. The priority date is important because it determines the foreign national’s place in line for a green card. Depending on the applicant’s country of origin and the green card category, there might be a significant waiting period before a visa becomes available.
Submit Form I-485
The final step in the transition process is filing Form I-485, Application to Register Permanent Residence or Adjust Status. This application is filed with USCIS once the priority date becomes current, and a visa number is available. Form I-485 is essentially the green card application and requires comprehensive documentation, including evidence of the applicant’s eligibility and admissibility to the United States.
It’s important to file this form while the H1B visa is still valid to maintain lawful status in the U.S. Processing times for Form I-485 can vary, and applicants may be required to attend an interview where they will need to verify the information provided in their application. Timely submission and thorough preparation for this step are key to successfully obtaining permanent resident status in the U.S.
H1B to Green Card Fees
Transitioning from an H1B visa to a green card involves various fees at different stages of the process. These costs can be significant and it’s important to understand who is responsible for bearing them – the employer or the employee. Initially, the PERM Labor Certification process, which the employer initiates, may involve costs related to recruitment and advertising. Typically, the employer is responsible for these expenses as they are part of demonstrating that no qualified U.S. workers are available for the job.
Once the PERM certification is obtained, the next step is the filing of Form I-140 (Immigrant Petition for Alien Worker). As of my last update, the filing fee for this form is $700. The final step is filing Form I-485 (Application to Register Permanent Residence or Adjust Status), which has a filing fee of $1,140. These fees are set by USCIS and are subject to change, so it’s advisable to check the latest fees on the USCIS website. While these fees can be paid by either the employer or the employee, the arrangement typically depends on the employer’s policies or the terms of the employment agreement.
H1B to Green Card Processing Times
The processing times for transitioning from an H1B visa to a green card can vary significantly based on several factors. The PERM Labor Certification process can take several months, depending on the Department of Labor’s workload and whether the application is audited. If audited, the process can take longer.
After the PERM certification, the Form I-140 processing time depends on the service center processing the application and the applicant’s employment-based preference category. It’s important to monitor the USCIS processing times for the most current information.
Finally, the processing time for Form I-485 can vary greatly. It depends on factors like the service center, the applicant’s country of origin, and the specific green card category under which they are applying. For instance, applicants from countries with high rates of immigration to the U.S. may face longer waiting times due to annual per-country visa limitations. It’s crucial for applicants to stay informed about their priority date and the current visa bulletin to understand when a visa might become available for them. Regular updates on processing times and visa availability can be found on the USCIS and Department of State websites, respectively.
Regaining H1B Status After Expiration
Regaining H1B status after its expiration is a critical issue for many visa holders. In scenarios where an individual’s H1B status has lapsed, there are specific options and procedures to regain status. One common approach is to file a new H1B petition with USCIS, either with the same employer or a different one. This petition, if approved, can effectively reset the H1B status of the individual. However, this process is subject to the usual H1B cap restrictions, unless the applicant is cap-exempt.
Another option is to apply for an extension of the H1B status under extraordinary circumstances. USCIS provides provisions under which an individual may extend their H1B status beyond the standard 6-year limit. This is particularly relevant for those awaiting green card processing. To qualify for this extension, the individual must have a labor certification or an I-140 petition filed at least 365 days before the 6-year limit on their H1B status. This extension can be granted in one-year increments until a decision is made on their green card application.
Retaining the Best Representation
Navigating the U.S. immigration law and H1B transition to a green card underscores the importance of having the proper legal representation. Choosing an experienced visa immigration lawyer can make a significant difference in the outcome of an application. A knowledgeable lawyer can provide guidance on the best course of action, help in preparing and filing the necessary documents, and represent the individual in communications with USCIS.
When selecting an attorney, it’s important to consider their experience in handling similar cases, their understanding of the latest immigration laws and policies, and their track record of success. An attorney not only aids in the procedural aspects of the application but can also offer strategic advice, especially in cases involving complications such as status expiration or the need for extensions under extraordinary circumstances. Ultimately, the right legal representation can be a vital asset in achieving one’s immigration goals.