How to Get a U.S. Green Card from the H-1B Visa

The H-1B visa is a U.S. visa that allows foreign workers who possess specialised skills in certain areas to work in the U.S. for a maximum of six years.

These specialised workers possess a high level of skill in a particular professional field, usually requiring at least a Bachelor’s degree or on some occasions, special training and a lot of experience.

The H-1B visa is not an “immigrant visa“. It does not guarantee permanent residency in the U.S. Hence, at the end of six years, the holders of the visa will have to return to their home country. However, holders of the H-1B visa can become eligible to apply for a Green Card once they reach the maximum stay of six years.

Why apply for a U.S. Green Card?

Green Card holders can live and work legally in the U.S. on an indefinite basis without the need for any additional documents. The Green Card is proof that an individual has permanent residence status in the U.S., allowing them to travel freely in and out of the country.

Once you have held a Green Card for five years, you may become eligible to apply for U.S. citizenship.

You can also sponsor relatives to hold their own Green Card, provided they meet the eligibility criteria.

If you do not get a Green Card by the time your H-1B visa expires, you will have to leave the U.S.

So how can you switch from the H-1B visa to Green Card?

Making the switch: H-1B visa to Green Card

If you already have an H-1B visa and would like to acquire a Green Card in order to remain in the U.S., the following instructions will guide you.

If you wish to apply for a Green Card, you will need to be aware of when your H-1B visa is due to expire since Green Card applications can take months or sometimes years to complete.

When your H-1B visa expires, you can retain lawful status on the basis that your Green Card application is “pending”, or you may be permitted to extend your current status if you already have an approved petition for a Green Card and are simply awaiting your priority date.

U.S. Green Card requirements

There are several categories of U.S. Green Card, such as family and employment-based Green Cards.

For instance, if you have a close family member in the U.S. (e.g. a spouse), you could apply for permanent residence based on your relationship.

Given your H-1B status, you will most likely apply for a Green Card through employment. To be eligible for this type of Green Card, you need to meet one of the following sets of conditions:

1. First preference immigrant worker (EB-1)

You should meet at least one of the following conditions:

• You have ‘extraordinary ability’ in science, the arts, education, athletics or business.
• You are an ‘outstanding’ researcher or professor.
• You are a multinational executive or manager who meets certain criteria.

2. Second preference immigrant worker (EB-2)

You should meet at least one of the following conditions:

• You are a member of a profession that requires you to hold an advanced degree.
• You have ‘exceptional ability’ in science, the arts or business.
• You seek a national interest waiver.

3. Third preference immigrant worker (EB-3)

You should meet at least one of the following conditions:

You are:

• A skilled worker – Your job requires a minimum of two years’ training or work experience.
• A professional – Your job requires at least a U.S. Bachelor’s degree or a foreign equivalent, and you are a member of the profession.
• An unskilled worker – You can perform unskilled labour requiring less than two years’ training or experience.

In addition, there is also the EB-4 category, which covers religious workers and U.S. Foreign Service employees, among others, and the EB-5 which covers individuals who invest a minimum of $900,000 into a U.S. business with at least ten employees.

Changing from H-1B to Green Card

The first step is to find an employer who will sponsor your application for a Green Card by offering you qualifying employment.

This could easily be the employer whom you have worked for under your H-1B status. However, you could find another sponsor if you choose.

Your employer must file a petition for a Green Card on your behalf – including documents like a PERM Labor Certification, an Application for Employment Certification and an Immigrant Petition for Alien Worker (known as form I-140).

PERM Labour Certification

PERM stands for Program Electronic Review Management.

If you fall under the EB-2 or EB-3 Green Card categories, your sponsoring employer must file a PERM Labour Certification with the Department of Labor (DOL).

As part of the certification process, the employer will receive approval from the DOL and then provide information on the job, including duties involved, requirements and location. In response to this information, the DOL will issue a prevailing wage determination. This will form the base salary requirement for the job.

The employer must then demonstrate that there are no U.S. workers suitable or available for the role by undertaking a recruitment process. This process requires that the job be advertised in two Sunday newspaper job postings, with the state workforce agency, and an additional three more times.

Once the employer can evidence that there are no U.S. workers available for the job, they can go on to file the Application for Employment Certification (known as ETA form 9089).

Immigrant Petition for Alien Worker

Once the ETA Form 9089 is approved, the employer will file an Immigrant Petition for Alien Worker (known as form I-140).

The purpose of the I-140 is to demonstrate that the worker is eligible for a Green Card through employment and that the employer can afford to pay the worker the wage advertised in the PERM recruitment process.

The date that the United States Citizenship and Immigration Services (USCIS) receive the I-140 is your priority date. You must wait until your priority date before you can take the next step.

Adjustment of Status

Once your priority date arrives, you should apply for Adjustment of Status by completing the next form, the I-485 form. Information you will need to supply for the Adjustment of Status application includes:

• Full name
• Date and place of birth, with details of citizenship or nationality
• Address details
• Recent immigration history
• Passport or travel document details
• Place, date and details of your last arrival into the U.S.
• Status on form I-94
• Current immigration status
• Application Type or Filing Category – H1B visa holders seeking a Green Card should tick the ‘Employment-based’ option.
• Past addresses
• Employment history for the last 5 years
• Information about your parents
• Your marital status and history
• Information about your children
• Biographic Information, such as your ethnicity, height, etc.
• General eligibility and inadmissibility grounds, such as association with certain organisations or groups, or whether you have ever been denied entry into the U.S.
• Criminal acts and violations
• Security and related information, such as whether you have ever been involved in espionage or terrorism
• Whether you have received public assistance from the U.S. Government or are likely to need public assistance in the future
• Illegal entries and other immigration violations
• Removal, unlawful presence, or illegal re-entry after previous immigration violations
• Miscellaneous conduct questions
• Details of any interpreter you may have used to complete your application
• Details of any other person who may have helped you to complete your application, or completed it on your behalf

Once you’ve filed Form I-485, please note that you shouldn’t leave the United States unless you obtain a travel permit.

After you have filed your I-485 form, accompanied by any supporting documents, you will be given an appointment at your local Application Support Centre (ASC). This appointment is scheduled so you can provide your biometrics information, which will be used to verify your identity and carry out any background and security checks.

You will also be asked to sign an acknowledgement that the information provided in your application is complete, true and correct.

Failure to attend the appointment or sign the acknowledgement will mean that your I-485 form will be rejected.

You may not be required to attend an interview. This will be determined by the USCIS, depending on your individual case.

If you are asked to attend an interview, the questions will revolve around the information you provided on your application form, your supporting documents, and your work and personal situation.

You should bring originals of all supporting documents with you, such as your passport or travel document.

Further, you may be asked for additional documents to determine your eligibility. If you do not supply these documents, your application may be denied.

The USCIS will notify you of their decision in writing. If your application is successful, you will initially be sent an approval notice, followed later by your Green Card.

If your application is denied, you will be told of the reasons why your application was unsuccessful and whether you may appeal the decision.

How long does it take to get a Green Card from H-1B?

Most H-1B holders have to wait approximately two years after filing the family sponsorship form before they can continue the process by filing their Green Card application.

How long does a Green Card last?

Most Green Cards last for ten years, at which point they may be renewed.

There is no limit to how many times you can renew your Green Card, provided you remain eligible.

If you need assistance…

You can contact immigration firms to help you through the complex process.

Credit: NNU Immigration