GAs one of the most popular visas, besides providing many benefits, the H-1B visa is a dual intent visa that allows the foreign nationals to apply for a green card or get lawful permanent resident status (adjust status).
Not all temporary or nonimmigrant visas have these options.
Some visa categories allow only renewal for the same status, while others permit changing to another temporary status.
On the other side, some visas do not have an option for renewal or change. Sometimes a foreign national will need to return to their home country upon expiration of the visa status.
This is why the H-1B has as many advantages over most other nonimmigrant U.S. visas.
Foreigners holding L-1 or H-1B visas are usually eligible to get a green card to live and work permanently in the U.S. through the process known as adjustment of status.
To obtain a green card, you need to go through multiple steps and a specific application process. If you go through the employment-based green card process while under H-1B status, you will use many benefits, especially if you obtained an approved I-140.
Here, we will show you how to, by taking step by step you obtain a green card. The process may look a bit complicated, but don’t worry. For any concerns or doubts, you can contact us!
EB1, EB2, EB3, and I-140 Petition
People who move to the U.S. are mostly employment-focused (EB-1, EB-2, and EB-3) and family-based categories.
Types of employment-based green cards
Governed by employment laws, green card applications are not sponsored independently.
As you know, other ways of receiving green cards include a green card lottery.
However, now we will focus on employment based category, green card categories, and processes.
“EB” means “workforce-based,” and each number preceding “E” indicates the preference for a category. There are also EB-4 and EB-5 categories, but this is not in the preference system for employment-based categories. These are the various job categories you may have a green card sponsoring application.
EB-1: Employment based First Preference Immigrant Visa
The EB-1 category comprises three subcategories of priority workers:
- Persons of Extraordinary Ability: Science, art, education, business, or athletics. To meet the eligibility criteria, the petitioner must prepare extensive documentation proving continuous national or international acclaim and recognitions in the subject field, but the applicant doesn’t need to possess a specific job offer.
- Outstanding Professors and Researchers: having at least three years of experience in teaching or research and international recognition, and the prospective employer must provide a job offer and sign the immigrant petition, but does not need the PERM (Labor certification)
- Multinational Executives and Managers: have been employed for at least one of three preceding years by a U.S. parent, subsidiary, branch, or affiliate of a foreign corporation. The potential employer must provide a job offer and file a petition with the USCIS (a Labor certificate is not required).
EB-2: Employment based Second Preference Immigrant Visa
The EB-2 category petitioners must have a labor certification approved by the Department of Labor, a job offer, and the prospective U.S. employer who will file a petition on behalf of the applicant.
There are two subcategories within the EB-2 category:
- Professionals obtained advanced degrees or a baccalaureate degree and at least five years progressive experience in the profession.
- Individuals with exceptional ability in the sciences, arts, or business significantly above that ordinarily encountered within the field.
EB-3: Employment based Third Preference Immigrant Visa
EB-3 category applicants have to be sponsored by their prospective employer.
There are three subcategories:
- Professionals holding a baccalaureate degree
- Skilled workers, i.e., capable of performing work requiring at least two years of experience or training
- Unskilled workers, i.e., those capable of filling positions requiring less than two years of training or experience.
National Interest waiver NIW
A National Interest Waiver may be filed by foreigners classified as EB-2. The beneficiary of an NIW is exempt from the requirement that their employer first obtains a labor certification (PERM) from the Department of Labor. Also, a job offer is not required, allowing the intending immigrant to self-petition.
The petitioner has to qualify as:
- “Advanced degree professional” or
- An “alien of exceptional ability.”
To prove exceptional ability in the sciences, arts, or business, the applicant has to file additional documentation along with the petition with at least three of the following:
- An official academic record showing the foreign national has obtained a degree/diploma/certificate, or similar award from a school/university/college, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of a letter from current or former employer proving that the petitioner has at least ten years full-time experience in the subject occupation;
- A state license to practice the profession or certification for a particular profession or occupation;
- Proof that the applicant has commanded a salary or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Proof of recognition for achievements and significant contributions to the industry or field by governmental entities, peers, or professional or business organizations
Or, the applicant can provide comparable evidence to establish eligibility.
National Interest waiver Qualifications
The individual’s work must benefit the “national interests” of the U.S. Administrative Appeals Unit of the USCIS has suggested one or more of the following factors be considered whether the foreigner’s work meets this standard:
- Enhancing the U.S. economy;
- Improving working conditions and wages of U.S. workers;
- Improving U.S. education and training programs;
- Making health care better in the U.S.;
- Improving the environment in the U.S.
- Providing more affordable housing in the U.S.; or
- Obtaining a request from an interested U.S. Government Agency.
EB-2 vs EB-3 Immigrant Visa
If you wait too long to ask your employer to sponsor you for the green card, or postpone the process, you may face additional and unwanted delays in many cases.
On the other side, employers sometimes may hesitate with this request because often, foreign worker leaves the place of work after receiving approval for their green card.
H-1B to Green Card Process
Foreign workers may request an extension of their H-1B status in one-year increments if their Labor Certification or I-140 were filed a year (365 days) before the beginning of their exemption from the standard 6-year limit, taking into account any recaptured time spent abroad.
There is an exception to this rule: if you have an approved I-140 and your priority date is not current yet (or if your LCA has been pending for a year), you will have unlimited extensions until you complete your green card application process.
Still, you must maintain lawful immigration status while in the green card process or change from H-1B to Green Card (EB-2/EB-3). To do so, you will have to submit an I-485 petition after the USCIS approves your employer’s I-140.
In some situations, you may use concurrent filing by submitting both the I-485 and I-140 petition. Moreover, you may also apply for the Employment Authorization Document (EAD).
Step by Step: From H-1B to Green Card Holder
To get the lawful permanent residence status, you need to undertake five green card process steps:
- Step 1: Find a Qualified U.S. Employer
- Step 2: Employer to Submit PERM Labor Certification
- Step 3: File Form I-140
- Step 4: Wait for Priority Date to Become Current
- Step 5: File Form I-485 Adjustment of status
Step 1: Find a Qualified U.S. Employer
You must first find an employer willing to sponsor you for your green card. In other words, you need to have a job offer by a qualified employer at a position qualifying you under an employment-based green card category. This doesn’t have to be your current H-1B employer if you found the other one who would like to sponsor you.
Still, there are certain requirements that your employer needs to meet before sponsoring your green card application, and your position must meet green card adjustment requirements.
Step 2: Employer to Submit PERM Labor Certification
To obtain a PERM labor certification, your employer needs to:
- Conduct the prevailing wage determination and eventually pay as your wage
- Conduct an extensive recruitment process for the position you will fill to ensure no U.S. workers are available
- File an ETA 9089 form
Step 3: File Form I-140
When you get the approval of the PERM, your employer must file an I-140 Immigration Petition for Alien Worker.
With this Form I-140, your employer has to prove the ability to pay the salary for your job position and submit it along with the approved PERM labor certification.
Once your petition is approved, the USCIS will send you an Approval Notice indicating that you can move forward to the next stage of your green card application process.
Remember, an approved I-140 doesn’t mean that your status has been adjusted automatically. To do so, you need to wait until the I-485 petition is approved.
Step 4: Wait for Priority Date to Become Current
As soon as the USCIS receives your petition, that date is your priority date. You will need to wait until your priority date becomes current before moving on to the final step.
Step 5: File Form I-485 Adjustment of status
Once you have a current priority date, you can apply for an adjustment of status by submitting the I-485 form with the USCIS. If it is approved, then you will receive your green card. In this phase, you can also apply for the Employment Authorization Document (EAD) and Advance Parole.
H-1B to Citizenship
No direct path you can take to citizenship if you hold any nonimmigrant visa, including an H-1B visa.
To become a U.S. citizen, you must first become a lawful permanent resident. When you obtain a green card, you must make sure that you qualify for citizenship.
You are eligible for U.S. citizenship if:
- You have been a green card holder for five years
- You have been married to a U.S. citizen for three years
- You have served in the U.S. military.
If you meet one of the mentioned criteria, you then need to:
- File an N-400 application for naturalization
- go through a citizenship interview
- Undergo a test to examine your grasp of the English language and your understanding of basic American civics and history.
If you pass these steps, you will be able to take the U.S. Oath of Allegiance and get U.S. citizenship.
Employment Based Preference Categories to Green Cards
Step by Step: EB1, EB2 and EB3 To Employment Based Green Card
If you belonge to the employment-based category EB1, EB2 and EB3, follow next steps tvhat will lead you to obtainign your green card status.
There are three fundamental steps of getting an employment-based green card (EB2 and EB3) in the U.S.:
- Step 1: Obtaining PERM Labor certification, including prevailing wage determination, recruitment, and ETA From 9089.
- Step 2: Filing I-140 immigration petition
- Step 3: Filing I-485 Application to adjust status
EB-1 Green Card Process
- A one-time achievement or
- At least three of the following documents:
- Smaller national or internationally recognized prizes and awards for excellence in the field of work received; or
- Proof of membership in associations in the field that requires outstanding achievements judged by national or international proficients, published material about the foreign national in professional or major trade publications or other major media; or
- Evidence of participation as a judge or a reviewer of others’ work in the field or an allied occupation, or
- Evidence of original scientific, artistic, athletic, scholarly, or business-related contributions of major significance in the subject field; or
- The proof of authorship of scholarly articles in the field (published in professional or major trade publications or other major media); or
- The proof of the foreign national’s work displayed at artistic exhibitions or showcases; or
- Evidence that the applicant has performed in a leading or critical role for organizations that have a prominent reputation; or
- Evidence that the foreigner has commanded a high salary or other high remuneration for services; or
- Proof of commercial successes in arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
Also, comparable evidence may be submitted if the above criteria do not apply to the applicant’s occupation.
If you have any concerns regarding the right documentation that you have to provide, don’t hesitate to contact our law firm to discuss eligibility or any employment or family-based immigration matter.
EB-2 Green Card Process
- Having a job offer The U.S. employer is the one to file a petition on behalf of the applicant.
- Obtaining the PERM labor certification from the Department of Labor DOL after obtaining the prevailing wage determination.
- Obtaining a Schedule A designation, or establish that you qualify for one of the shortage occupations in the Labor Market Information Pilot Program.
- As we mentioned above, foreign workers may apply for an exemption from the job offer and labor certification requirements if it would be in the national interest of the United States.
EB-3 Green Card Process
- An approved I-140 petition filed by the sponsoring U.S. employer
- Evidence of having experience in the relatable field (two years of in the relevant fields for skilled workers and suffice with on-the-job training and the ability to perform the task in the relevant feed), and one of the following items:
- PERM Labor Certification
- Schedule-A Designation
- Proof that you qualify for one of the shortage occupations in the Labor Market Information Pilot Program (LMI pilot program).
EB-3 to EB-2 Porting
Porting is a process that allows green card applicants to transfer their petition to a different permanent resident status.
If you have already filed the I-140 petition for an EB-3 and now you are waiting on your priority date, your employer may file a new petition on your behalf under EB-2 status.
However, to replace your first petition, you must acquire the personal qualifications for an EB-2 (master’s degree or exceptional ability) and a position that requires new qualifications.
This process is not that straightforward, so you should speak to your immigration attorney to make sure you take the right steps.
H-1B to The Green Card Processing Time
It is not possible to assess the exact processing time of the entire green card process, but we will try to briefly overview what it will depend on.
If you want us to make an assessment of your case and tell you what will apply to your particular situation, be free to contact us.
Step 1 – 6-18 months for the PERM Labor Certification with an audit.
Step 2 – depends on how soon your priority date will be current. The time to get the approval of I-140 approved depends on how soon your priority date will be current. In case your priority date is not current for several years, the USCIS will move your application back to be processed closer to your priority date.
Step 3 and 4- it depends on which country you come from. Waiting for the approval of Form I-140 can be the most extended waiting period. You can take a look at the most recent visa bulletin. Here, you will find where your priority date falls.
Step 5 – depends on which service center your I-485 has been sent to. Some USCIS service centers are busier than others. Here you can check the current wait times.
EB1 Green Card Processing times
Petitioners of EB1 do not have to go through the PERM labor certification process, so the processing time for this visa is shorter.
Generally, the processing time will depend on the USCIS service center where your application is processed, which sometimes can take up to six months.
After your I-140 has been approved, you have to submit your Form I-485. The processing of Form I-485 also takes around six months.
EB2 Green Card Processing Time
Step 1: 6 months to two years is PERM processing time to obtain PERM labor certification
Step 2: 6 months – on average: USCIS takes about six months to process your form I-140.
Step 3: depends on your service center where you filed I-485 application, but usually, it takes about six months.
EB3 Green Card Processing Time
- Step 1: six months or up to 18 months is PERM processing time if your employer has to be audited
- Step 2: six months to get the approval of the I-140 petition
- Step 3: few months of waiting for your date to become current and about six months (depending on your service center) to adjust status.
The USCIS offers regular or premium processing services for Form I-140. Premium processing reduces the processing time to 15 calendar days. Premium processing comes at a fee of $1,225.
Green Card Process Fees
H-1B Green Card Process Fees
- No fee for PERM Labor Certification, if applicable (some costs will be made for the recruitment and advertisement processes)
- I-140 basic filing fee: $700. You need to submit this form and fee whenever a job change occurs. In addition, if you change employers or preference levels, you must also file the form and pay the fee.
- I-485 filing fee: $750-$1,140. The fee for the Adjustment of Status application varies depending on the petitioner’s age. Use the USCIS website to find more information.
- Biometrics fee: $85.
EB-3 vs. EB-2 Green Card Process Fees
The filing fees for EB-2 and EB-3 processes are relatively smaller than the H-1B process.
If you belong to the first preference category or second preference category, your sponsoring employer needs to pay $700 for filing the I-140 petition.
Once you get the approval of the I-140 petition, you will need to submit an actual green card application, the I-485 Adjustment of Status Application. The fee for this petition varies according to your preferences, so you can use the USCIS calculator to determine the exact fee.
Do You Need An Immigration Attorney?
Understanding the ins and outs of immigration law is essential if you want your green card application process to go smoothly.
On this path you may face obsacales that may easily make you make common pitfalls. This is why it is wise to save yourself time and money and hire an attorney who will handle your case and help you adjust status.
Herman Legal Group law firm has over 15 years of experience in filing adjustment of status and permanent residence application. Through the egreen card process steps, we advise our clients on the strategy, deadlines and prepare and obtain all necessary documentation to successfully file the adjustment of status application and get the green card.
We are skilled in handling complex situations that may arise during the green card process.
Contact our law firm today to book your consultation!
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