An H-1B Visa is a nonimmigrant visa and is not itself a direct pathway for permanent residence in the United States. However, that does not mean that foreign nationals with an H-1B Visa can not apply for permanent residence. There are several employment-based pathways for H-1B Visa holders who want to immigrate to the US.
Since the H-1B Visa is temporary, it usually lasts up to 6 years. Once the validity of the visa expires, the H-1B Visa holder is expected to voluntarily leave the country or have an employer sponsor their application for permanent residence.
What Is the Employment-Based Pathway for H-1B Visa Holders?
H-1B Visa holders can apply for an employment-based Green Card if their employer is willing to sponsor their application for permanent residence. The employer will be required to pay a certain fee to sponsor the foreign national’s application.
Therefore, this pathway is generally opted by well-educated employers hiring highly-skilled workers who significantly contribute to the business with their skillset.
Applying for an employment-based Green Card involves the following steps:
PERM Labor Certification:
The employer will be required to file a PERM application to hire a foreign worker. The Program Electronic Review Management (PERM) system manages the paperwork with the US government. The PERM ensures that:
- No one from the current pool of US workers involving US citizens, permanent residents and other authorized noncitizens is qualified, available or willing to perform the job position offered to the foreign worker
- The salary offered for the position is relevant to the prevailing wage rate in the current labor market
The PERM labor certification protects the US workers and the H-1B Visa holders from getting lower than relevant wages for their job.
File Form I-40:
The employer will be required to advance the Green Card process by filing Form I-140, Immigrant Petition for Alien Workers. After this petition is approved, the immigrant worker will get a “priority date.” This priority date will mark where the application stands in line. The foreign worker needs to maintain their legal status in the US while their application is being processed. You may be able to request a visa extension in 1-year increments if your labor certification or I-40 petition was filed 1 year before the 6-year limit expired.
File Form I-485:
Once Form I-140 is approved, you can apply for Adjustment of Status to permanent residency. This way you will continue to have valid immigration status throughout the process. You can adjust your status by filing Form I-485, Application to Register Permanent Residence or Adjust Status. The Adjustment of the Status process may take up to several months. But once this application is approved, you will be issued a Green Card.
