The H1B visa is a dual intent visa, which means that those who have it are eligible to apply for permanent residence. It may take months or years to get the Green Card through this pathway.
The procedure is so complicated, so it is recommend to hire an experienced attorney. They can guide you through the documentation and deadlines for a smoother transition.
What is The Procedure of Transferring a H1B Visa to Green Card?
Here are the steps of getting a Green Card through the H1B visa:
- Get PERM Labor Certification.
- File Form I-140, Immigrant Petition for Alien Worker.
- File Form I-485, Adjustment of Status.
The employment based Green Card process must be initiated by your employer in the United States. The employee or anyone else cannot start the process of applying for the Green Card.
Step 1: Get PERM Labor Certification
In 2005, to make it easier for applicants to get their Employment Based Green Card, the US introduced the PERM. The PERM or Program Electronic Review Management system is linked to the Department of Labor (DOL). It is electronic, reducing the time it takes to apply as well as the paperwork.
To start the process of getting their employees a Green Card, employers must file to get the PERM Certification from the DOL. This includes these steps:
Registering with DOL
Each employer who wants to sponsor a foreign worker to get their Green Card has to register with the DOL. After completing the online form, they will get their user ID, a password, and PIN number from the DOL in their email.
The DOL has created a guide on how to register online, which employers can follow.
Getting approval for Prevailing Wage Determination
The DOL also requires from the employer that they pay the prevailing wage to their foreign workers. This means that they will be paying the full wage determined by the state and not paying them less. Employers can get the prevailing wage certification from the State Employment Services (SESAs) or State Workforce Agencies (SWAs).
After they get the certification they can file it to the DOL. The certification must be valid when it is filed.
Conducting Recruitment Processes
After getting the certification for the prevailing wage determination, employers must prove to the DOL that they could not find a qualified US citizen for the job position. To prove that no US citizen meets the requirements, the employers must follow these procedures:
- Place 2 newspaper print ads for 3 consecutive days, one of which has to be a Sunday. The ad has to be in a newspaper which circulates in the geographic area where the work will be performed.
- They may place a national journal ad instead of one of the newspaper ads
- In addition, they should also conduct another recruitment process such as:
- Place a website ad
- Conduct on campus recruiting
- Participate in job fairs
- Place radio or TV ads, etc.
- In any ad, the job title, detailed description, requirements, and employer name must be visible
After they conduct these recruitment processes, they must hand in a report to the DOL to prove that no US citizen was appropriate for the job position. The report must include all efforts of the employer to find US employees and the results. They must also state reasons as to why US citizens who applied were rejected. If they had laid off previous foreign workers, employers should also prove that they considered these laid off workers first before wanting to hire a new H1B employee and sponsor them for the Green Card.
The DOL reserves the right to oversee the recruitment process and monitor all activities. The employer should keep the files of the recruitment process for 5 years in case of DOL auditing.
File ETA Form 9089
Following the prevailing wage determination and recruitment, the employer must file the ETA Form 9089. This form is the Application for Employment Certification. It can be filed either by mail or electronically.
The form should prove that the employer has fulfilled all requirements and that the job position is appropriate for the foreign worker.
Obtaining PERM decision
After the DOL officers review all documents, they can either approve or deny the PERM certification. In some cases, they might require an audit or additional documents to reach a decision. Applicants can expect PERM decision to be made within 45 to 60 days of application.
Step 2: File Form I-140
The next step is to file form I-140 or the Immigrant Petition for Alien Worker. After getting the PERM approval, the I-140 form proves that the employee will get the wage that has been advertised in the recruitment phase and that they are eligible to work and live in the US permanently.
When the employer files Form I-140, they will get a visa number, which is accompanied by a date. The priority date indicates when the case will be processed. If that date is current, then the employee can also file Form I-485 at the same time as Form I-140. When this happens, the process if called concurrent filing.
Step 3: File Form I-485
The final step which concludes the process is for the employee to file for Adjustment of Status. This is done by filing Form I-485 or the Application to Register Permanent Residence or Adjust Status.
This form is sent to the USCIS and if approved, will allow the employee to work and live permanently in the US as a legal person.
There are two ways to file for Adjustment of Status:
Within the US
If within the US, employees only file form I-485 and do not need to follow any other procedures. The only rule is that they have to apply while they have a valid H1B visa. If the visa has expired, they will have to return to their home country. The only exception is if the employee has an approved I-140 and their date is not current. In that situation they will be granted unlimited extension until the procedure is complete.
Outside the US
If outside the US, employees will have to go through consular processing. Consular processing means that the employee applies for the adjustment of status through the US Embassy at their location. These are the steps that need to be taken for consular processing:
- After the employer petitions with USCIS and gets approval, USCIS sends the application to the National Visa Center (NVC)
- NVC assigns a case number and sends it to the employer and employee
- When your priority date becomes current, the NVC will send you the applicable fees to be paid
- Then it will send you to complete the Affidavit of Support otherwise called a Form I-864 (costs approx. $700)
- NVC will also send you to complete Form DS-3032 or Choice of Address and Agent. Those who are processing the H1B to Green Card electronically will have to complete Form DS-261 instead of DS-3032.
- After you complete these forms, you should send them back to the NVC for processing
- NVC will then send you Form IV or Instructions Package for Immigrant Visa Applicants, which costs approximately $400
- After reviewing all documents, the applicant is called for an interview. The accompanying family members should be there too, and prior to the interview should go through visa medical examination.
If your application is approved, you will get a stamp in your passport and then later the physical Green Card.
How Much Does it Cost to Get a Green Card Through the H1B Visa?
These are the fees that need to be paid when going through the process:
- Attorney Fees – Employers have to pay $2,000 to $5,000 for the attorney to file the PERM certification. A few thousand dollars are also required for them to file the I-140 and I-485 forms. The fees for these two forms can be paid by the employer or employee.
- Advertisement fees – which depend on the state and medium used to advertise for the job position. Fees range from hundreds to thousands of dollars. These fees must be paid by the employer.
- Application fees – The I-140 application fee is $580 and the I-485 is $1,070 for each employee. These fees can be paid by either the employee or employer.
In general, applying to get the Green Card from an H1B visa could cost up to $10,000. However, once approved, the person is allowed to live and work in the US permanently.