The H-1B visa is the most popular non-immigrant work visa for the U.S. It signifies that the holder of the visa has an occupation which is desirable in the country and has completed extensive education and training. H-1B visas are given to people for a maximum of 6 years. After the 6 years, they are required to return to their home country. The U.S grants a grace period of 10 days after the H-1B visa expires for employees to make arrangements for their return or extend their stay.
A lot of H-1B visa holders want to become permanent residents of the United States. This can be done by getting an American Green Card. Since the H-1B visa is of dual intent, this means that those who have it are eligible to apply for permanent residence.
The process is called the H-1B to Green Card transfer or the Employment Based Green Card. Besides this, there are also other types of Green Cards such as:
- Family Based Green Card
- Political Asylum Based Green Card
- Adoption Based Green Card
- Refugee Based Green Card
- Diversity Based Green Card
For the Employment Based Green Card, it can take months or years to get the Green Card. Several steps are required and agencies require extensive documentation. The procedure can become complicated, so most agencies recommend hiring an experienced attorney. They can guide you through the documentation and deadlines for a smoother transition.
Summarized, there are basically three steps to getting an Employment Based Green Card:
- Getting PERM Labor Certification
- Filing Form I-140, Immigrant Petition for Alien Worker
- Filing Form I-485, Adjustment of Status
Each one has its own procedures and documents you need to submit, so the article will go through how you can successfully complete each one. The most important factor you need to know is that 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.
Due to this, before you start your process to get a Green Card, you need to find a U.S employer willing to hire and sponsor you.
Process from H1B to Green Card
Getting PERM Labor Certification
In 2005, to make it easier for applicants to get their Employment Based Green Card, the U.S 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
- Getting approval for a prevailing wage determination
- Conducting recruitment processes
- Filing ETA Form 9089
- Obtaining PERM decision
Registering with DOL
Each employer who wants to sponsor a foreign worker to get their Green Card from an H-1B visa status 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 U.S citizen for the job position. Because of that, they have to hire a foreign worker and want to sponsor the worker to get their Green Card.
To prove that no U.S 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 U.S citizen was appropriate for the job position. The report must include all efforts of the employer to find U.S employees and the results. They must also state reasons as to why U.S 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 H-1B 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.
Filing 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 to go from an H-1B to Green Card.
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.
Filing Form I-140
The next step to go from H-1B to Green Card 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 U.S 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.
Filing Form I-485
The final step which concludes the process of H-1B to Green Card 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 U.S as a legal person. There are two ways to file for Adjustment of Status:
If within the U.S, 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 H-1B 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.
If outside the U.S., employees will have to go through consular processing. Consular processing means that the employee applies for the adjustment of status through the U.S 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 H-1B 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.
After all the procedures, whether the applicant is in the U.S or outside, USCIS will process the documents and inform of their decision. If your application is approved, you will get a stamp in your passport and then later the physical Green Card. You will have successfully transferred from an H-1B to a Green Card permanent U.S resident.
Categories of Employment Based Green Cards
Around 140,000 people each year qualify to get an Employment Based Green Card. Each country gets 7% (9,800 people) of this quota no matter how big or small the country is. There are 5 categories of employees who can file to go from H-1B to Green Card. Each one of them gets a share of that 140,000 quota. The categories are as follows:
E-B1 or Priority Workers
The EB1 category is the one which most people want to apply but few qualify for it. The priority dates are usually current so they get processed quite quickly. Those who qualify for E-B1 are:
- Exceptional professors and researchers
- Managers and executives
- Those with extraordinary abilities in business, arts, sciences, education, or athletics
Each country gets 2,802 of these visas plus the visas not used for E-B4 and EB5.
E-B2 or Professionals with exceptional ability or advanced degrees
Annually around 2,802 visas plus those not used for E-B1 are given to E-B2 applicants. These include:
- Those with extraordinary abilities in art, business, and science
- Those with advanced degrees (Masters of PhD degrees)
- Physicians who will serve in underserved areas in the U.S
E-B3 or Skilled/Professional Workers
This category gets another 2,802 visas plus those not used by E-B2. The following qualify for an EB3 Green Card:
- Those with Bachelor Degrees
- Skilled workers who have a minimum of two years experience or training
- Unskilled workers
E-B4 or Special Immigrants
The E-B4 category gets 695 visas annually and those who qualify are:
- Those who are working or have previously worked for the U.S government abroad
- Religious workers
- Those who work for U.S Armed Forces as translators
E-B5 or Investors
No more than 3,000 visas are reserved for the E-B5 category. Those who qualify are investors who will create at least 10 full time jobs in the U.S and invest from $500,000 to $1,000,000 in the U.S economy.
H1B to Green Card Fees
Getting an Employment Based Green Card is expensive. It includes fees to be paid both from the employer or sponsor and the employee. These are the fees that need to be paid:
- 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 H-1B visa could cost up to $10,000. However, once approved, the person is allowed to live and work in the U.S permanently.