One of the main benefits of H-1B status is its tolerance of “dual intent” — the ability of an H-1B worker to apply for and obtain permanent residence in the US without having to leave the US and wait abroad for an immigration visa to be approved. It is even possible to continue working without a break if you are careful about preparing and filing your application. The petition process involves quite a bit of paperwork, however. Following is a brief overview of the process.

Step One: Find a Sponsor

For many if not most H-1B employers, their sponsor is their H-1B employer who wishes to retain their services permanently. In any case, it is your sponsor who must initiate the permanent residence procedure on your behalf — you cannot do it yourself. Although the entire process takes quite some time and can vary greatly on a case by case basis, you will be in legal immigration status as soon as your sponsor receives a USCIS Receipt Notice.

Step Two: Obtain PERM Labor Certification

The Program Electronic Review Management (PERM) system is an electronic system that allows you to obtain a labor certification from the US Department of Labor. Like the LCA that the H-1B employer obtained as a part of the H-1B petition process, PERM certification is designed to assure the Department of Labor that the employment will not adversely affect US workers.

PERM Labor Certification - Department of Labor

To obtain PERM labor certification, you must:

  • Register with the Department of Labor. You will receive a login ID and a password
  • Obtain a prevailing wage certification from State Employment Services or the State Workforce Agency and file it with the DOL. This certificate sets the minimum wage that your employer is allowed to pay you.
  • Conduct recruitment to seek a US worker for the position and show that no qualified US worker was willing to accept the position. Recruiting involves placing a newspaper ad and at least one other form of recruitment (a website ad, for example). The process takes about three months, and your employer will have to fill out a report for the DOL.
  • Fill out and file ETA Form 9089, Foreign Labor Certification. There is no filing fee.
  • Obtain a favorable decision from the DOL. The entire process, from registration to approval, takes about six to ten months.

Step Three: File the I-140 Petition

The employer must file Form I-140 with the USCIS. The employer will probably file the I-140 in the second or third employment preference, because it is these two preferences that generally correspond to the skill level of an H-1B worker. In many cases, this means no special delay before processing begins. Workers from China, Mexico, India, or the Philippines can face delays of several years before a visa number is issued and processing begins.

The filing fee for Form I-140 is $700, and approval means that the USCIS has classified the employee as eligible for permanent residence. It does not grant permanent residence by itself, however.

Step Four: File Form I-485, Adjustment of Status to Lawful Permanent Resident

The H-1B worker himself must file Form I-485 with the USCIS to adjust his status to permanent resident. The total filing fee, including the biometric services fee (for fingerprinting), is $1,225. Once this petition is approved, an employee located in the US is allowed to live and work permanently in the US. The employee must be in legal status at the time he files Form I-485.

Naturalization Bio-metrics - Finger Print

Concurrent Filing

The USCIS permits Form I-140 and Form I-485 to be filed together, at least for most H-1B visa holders and certain other applicants. If you file Form I-140 and the USCIS replies that you will have to wait for a visa number to become current before processing can begin, you can file Form I-485 as soon as your visa number becomes current. Once you file the I-485, you can apply for advance parole, which will allow you to leave the US temporarily and return.

Consular Processing If You are Located Outside the US

The USCIS must issue a Receipt Notice for Form I-485 while you are still in legal immigration status for the employee to remain in legal status.. Once this occurs, the employee may remain in the US while waiting for the I-485 to be approved. If the employee’s status expires earlier, he will be expected to leave the US and wait for approval of the I-485 while located abroad. In this case, an additional step will be required — the employee must apply for an immigration visa at a US embassy or consulate abroad. This step will involve a significant amount of preparation.

Talk to a Seasoned Immigration Lawyer

Since the transition from H-1B to permanent resident can take anywhere from a year to over a decade, committing a serious mistake in the application process is not an option — the stakes are simply too high for that. It is critical that you contact an experienced immigration lawyer well before your current H-1B status expires.