Yes, the H-1B visa can be a pathway to obtaining a Green Card (permanent residency) in the United States. Many H-1B visa holders transition to a Green Card through an employment-based Green Card process. This is one of the common routes for skilled workers to move from temporary non-immigrant status (H-1B) to permanent resident status.
Steps to Transition from H-1B to Green Card
Here’s a detailed guide on how the H-1B visa can lead to a Green Card:
1. Employment-Based Green Card Categories
The most common Green Card categories for H-1B visa holders are employment-based categories, specifically:
- EB-1: Priority Workers (Individuals with extraordinary ability, outstanding professors, or multinational executives).
- EB-2: Professionals with advanced degrees or individuals with exceptional ability.
- EB-3: Skilled workers, professionals, or other workers.
The EB-2 and EB-3 categories are the most common for H-1B visa holders, although highly qualified individuals may qualify under EB-1.
2. Green Card Process Overview
The process of obtaining a Green Card through employment is generally divided into three main stages:
a. PERM Labor Certification (for EB-2 and EB-3 Categories)
The first step in obtaining an employment-based Green Card is the PERM (Program Electronic Review Management) process, which is required for EB-2 and EB-3 categories. The employer must:
- Prove that no qualified U.S. workers are available to fill the position.
- Obtain a Labor Certification from the U.S. Department of Labor (DOL), verifying that the hiring of the foreign worker will not adversely affect U.S. workers.
Note: PERM Labor Certification is not required for EB-1 and certain EB-2 categories, such as individuals with a National Interest Waiver.
b. I-140 Immigrant Petition
Once the PERM certification is approved (if applicable), the employer files Form I-140 (Immigrant Petition for Alien Worker) with the U.S. Citizenship and Immigration Services (USCIS). This petition establishes that:
- The employee meets the qualifications for the employment-based Green Card category (EB-1, EB-2, or EB-3).
- The employer has the financial ability to pay the offered wage.
The I-140 petition can be filed concurrently with the next step (I-485) if the employee’s priority date (the date when the labor certification or I-140 is filed) is current according to the visa bulletin.
c. Adjustment of Status (I-485) or Consular Processing
After the I-140 petition is approved, the employee can apply for Adjustment of Status (Form I-485) if they are already in the U.S. under an H-1B visa or another non-immigrant status. If they are outside the U.S., they can undergo consular processing through the U.S. embassy or consulate in their home country.
- Adjustment of Status (Form I-485): This is the process of changing from non-immigrant status (H-1B) to permanent resident status (Green Card) while remaining in the U.S.
- Consular Processing: If the individual is outside the U.S., they will attend an interview at a U.S. consulate or embassy.
Once Form I-485 is approved (or consular processing is completed), the individual will receive their Green Card.
3. Advantages of H-1B to Green Card Path
- Dual Intent: The H-1B visa is one of the few non-immigrant visas that explicitly allows dual intent, meaning that H-1B holders can apply for a Green Card without jeopardizing their H-1B status.
- Employment Flexibility: While an H-1B visa is tied to a specific employer, once the Green Card process is underway, certain flexibility can allow for job changes (especially after I-140 approval).
4. H-1B Extension Beyond Six Years During Green Card Process
While the H-1B visa normally has a six-year limit, it can be extended beyond this period if the Green Card process has begun. Extensions beyond six years are possible under the American Competitiveness in the 21st Century Act (AC21) if:
- The PERM labor certification or I-140 petition has been pending for at least 365 days (allowing for 1-year increments).
- The I-140 petition has been approved, but the priority date is not current due to visa number retrogression (allowing for 3-year increments).
These extensions allow H-1B holders to stay in the U.S. legally while their Green Card applications are processed.
5. Priority Date and Visa Bulletin
The priority date determines when the applicant can file for Adjustment of Status (I-485). This date is based on when the PERM labor certification or I-140 petition is filed. Each month, the Department of State publishes a visa bulletin, which indicates which priority dates are current for different employment-based Green Card categories.
If the priority date is current (meaning there is an available visa number), the applicant can file for Adjustment of Status or proceed with consular processing.
6. Premium Processing for I-140
For faster processing, employers can use premium processing for the I-140 petition. This guarantees a decision within 15 calendar days for an additional fee. While premium processing expedites the I-140 stage, it does not expedite the entire Green Card process, especially if there is a backlog in visa availability for certain countries.
7. H-4 Visa Holders and Green Card Process
Spouses and dependents of H-1B holders, who typically hold an H-4 visa, can also apply for a Green Card once the primary H-1B holder is in the Green Card process. Certain H-4 spouses are eligible for Employment Authorization Documents (EADs) once the H-1B holder reaches specific stages in the Green Card process, allowing them to work legally in the U.S.
Conclusion
The H-1B visa can lead to a Green Card through the employment-based Green Card categories (EB-1, EB-2, and EB-3). The process involves labor certification (if applicable), filing an I-140 Immigrant Petition, and finally adjusting your status to a permanent resident through Form I-485. With dual intent and the ability to extend H-1B status during the Green Card process, the H-1B visa provides a clear pathway for foreign professionals to achieve permanent residency in the United States.