US Immigration News

Can You Apply for a Green Card With the H-1B Visa?

3.75 minute read
"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."
Written by My Visa Source Team
Published on:  Sep 12, 2021
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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.

What Is Job Portability?

It is advisable to request job portability since you may switch jobs while your application is still being processed. This could be for many reasons including the job not being available anymore, the business being gone out of business, or finding a better job opportunity. Requesting job portability is recommended for individuals who:

  • File Form I-485 properly based on an approved or pending Form-140 that names the principal beneficiary

  • Have a pending Form I-485 with the USCIS for 180 days or more since the receipt date

  • Received either a new, permanent job offer from a US employer in the same occupation as the job mentioned in the original Form I-140 and would like to request to use the new job offer on Form I-485, or

  • Received a Request for Evidence (RFE) or NOID from the USCIS about a pending Form I-485 to confirm the new job offer in Form I-140 or a previously filed Supplement J is still available or 

  • Received a NOID from the USCIS regarding your Form I-485 because your petitioner had withdrawn the Form I-140 or the petitioner’s business has gone out of business 

You must request job portability before your application for Adjustment of Status is approved by the USCIS. This request must include the following:

  • Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability 

  • Employment verification letter to confirm that your offer of permanent employment exists

  • Any other documentation required to establish your eligibility for job portability

What Are the Dual Intent Benefits of an H-1B Visa?

Despite being a nonimmigrant visa, the H-1B Visa holder can apply for permanent residence without affecting their status. The H-1B Visa is a dual intent visa recognized in the Immigration Act of 1990. Dual intent allows noncitizens to come to the US to apply for permanent residence. 

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