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H1B to Green Card

Can H1B Visa Holders Apply for a Green Card?

Yes. Individuals who are in the United States under an H1B visa can apply for a green card that will allow them to obtain lawful permanent resident status. 

What Types of Green Cards Should I Apply For? 

H1B visa holders are in the United States because they work in a specified professional or academic field that requires special expertise, a college (bachelor’s) degree or higher, or equivalent work experience. Fortunately, there are green cards available for similarly-positioned individuals. 

The EB1A Immigrant Visa 

The EB1A visa is an immigrant visa (green card) that allows individuals with extraordinary ability in the sciences, arts, education, business, or athletics to permanently come to the United States for employment within their field of expertise. 

H1B visa holders work in specialty occupations, and some may qualify as having extraordinary ability in their field that makes them eligible for the EB1A visa. Applicants must submit evidence that they qualify for the EB1A visa even if they already have an H1B visa. Generally, the United States Citizenship and Immigration Service (USCIS) is more strict about EB1A visa requirements because, unlike the H1B visa, it allows individuals to live in the United States permanently.

To qualify for the EB1A visa, applicants must be able to prove through evidence: 

  • The applicant has extraordinary ability and expertise in the sciences, arts, education, business, or athletics;
  • The applicant’s extraordinary ability is the subject of sustained national or international acclaim;
  • The applicant’s achievements are recognized in his or her field; and
  • That the applicant is coming to the United States or adjusting status to continue work in his or her area of expertise.

The EB1B Immigrant Visa 

The EB1B visa is an immigrant visa (green card) that allows outstanding professors and researchers to permanently come to the United States if they demonstrate international recognition for outstanding achievements in a particular academic field and have at least three years of experience in teaching or researching within that field.

H1B visa holders should consider applying for the EB1B visa because it requires applicants to have extraordinary achievements in their particular field. In order to qualify for the EB1B visa, an applicant must prove through evidence: 

  • He or she has outstanding achievements in a particular academic field; 
  • The applicant has at least three years of experience in teaching or researching in his or her respective field;
  • The applicant is seeking to enter the United States to pursue tenure, a tenure track teaching, or comparable research position at a university or other higher education institution;
  • The applicant has a job offer from a university, higher education institution, or a department, division or institute of a private employer before applying for the EB1B visa.

The EB2 PERM Immigrant Visa

EB-2 visas allow individuals with an advanced degree or its equivalent or who have exceptional ability to permanently come to the United States for employment. Individuals may also seek a waiver to these requirements through the national interest waiver, discussed below.

H1B visa holders can qualify for the EB2 Visa if they can show that they have exceptional ability in the sciences, arts, or business. Additionally, eligibility for the EB2 visa can be shown by demonstrating that the applicant has obtained an advanced degree and has five years of progressive work experience in his or her field. 

The EB2 National Interest Waiver Immigrant Visa

Typically, employers must lead the application process for EB2 visa applicants to seek entry from their advanced degree or exceptional ability. Under the National Interest Waiver, some EB-2 visa applicants are eligible to file their own application without a job offer or labor certification, if their proposed endeavor has substantial merit and national importance to the United States; the applicant’s qualifications positions them to advance their proposed endeavor; and their proposed endeavor will benefit to the United States.

The EB3 Immigrant Visa 

The EB-3 visa allows skilled workers, professionals, or other workers to permanently come to the United States for employment. Individuals must meet certain education, skills, and work experience requirements to be eligible for an EB-3 visa. However, the requirements for an EB-3 visa are not as strict as requirements for EB-1 and EB-2 visas. 

To qualify for an EB-3 visa, an applicant must show evidence that he or she qualifies under one of the three categories: skilled workers, professionals, or unskilled (other) workers. Each category requires EB-3 visa applicants to prove their eligibility through documentation that shows their relevant experience.

How to Apply for an Immigrant Visa?

Individuals with an H1B visa who want to obtain a green card and are already in the United States must apply for a green card by adjusting their immigration status. Individuals who are outside the United States at the time they apply for a green card must use consular processing. Below are the steps to apply for a green card visa through adjustment of status and consular processing. 

Step One: Employer Files PERM Labor Certification 

Unless applying under the National Interest Waiver, H1B visa holders must first find an eligible employer who will sponsor the green card applicant and offer them a job. The employer must first seek approval through the United States Department of Labor’s Foreign Labor Certification Process. The employer will be issued Permanent Labor Certification by using the DOL’s Program Electronic Management Review (PERM) System. 

When going through the PERM process, the applicant’s United States employer must certify that the job opening is available to United States workers, is in a specified professional field, that the rate of pay for the job is a prevailing industry rate, and that a foreign worker is needed to fill the position. Thus, the employer must show through an extensive recruiting process that no qualified Americans are available to work the job.

The employer must submit Form ETA-750 as part of the PERM labor certification. This form helps to prove that the hiring of a foreign worker does not displace American workers eligible for the same job. This must be completed by the employer before an application can actually be submitted for the EB-2 visa. The PERM process can be the most lengthy part of the EB-2 visa process. 

Step Two: Applicant Files Form I-140 

Green card applicants must complete and sign Form I-140, Immigrant Petition for Alien Workers according to the form’s instructions. The form is submitted with the United States Citizenship and Immigration Services (USCIS). After completing and signing the form, it must be submitted with the applicable filing fee and documentary evidence showing the applicant meets the qualifications for the immigrant visa. 

Evidence with Form I-140

When submitting Form I-140, applicants must provide evidence that they meet the qualifications of the specific immigrant visa they seek. 

Adjustment of Status: Submit Form I-485 Concurrently with Form I-140

Green card applicants who are already in the United States may be able to file I-485, Application to Register Permanent Resident or Adjust Status with the USCIS concurrently with Form I-140.

Extra Requirements for EB2 National Interest Waiver

Instead of having an employer-led application process and required labor certification, an applicant for the National Interest Waiver EB-2 visa must complete and sign Form ETA-750B and Form I-140 according to the forms’ instructions. Both forms are submitted to the USCIS with the applicable filing fees and documentary evidence showing the applicant meets the advanced degree or exceptional ability qualifications.

Step Three: Applicant Files Online Form DS-260 and DS-261

Green Card applicants who are outside of the United States at the time they apply must also submit the online Form DS-260 and DS-261 application and pay the associated fee.

Step Four: Applicant Schedules Visa Interview

After submitting Form DS-260, applicants must then schedule an interview with the U.S. Embassy or Consulate near them. At their interview, applicants will be required to have their biometrics taken and will be asked questions about their background, experience, and interest in coming to the United States permanently. Applicants must bring the following items to their interview: 

  • Copy of printed Form DS-260; 
  • Copy of Form I-140; 
  • A valid passport;
  • A photo conforming to the United States Department of State’s photo requirements;
  • Evidentiary documents proving the applicant’s qualifications; 
  • The applicant’s CV or resume;
  • An affidavit of support from the applicant’s employer

Step Five: (Consular Processing Only) Applicant Files Form I-485 with the USCIS

Applicants who are overseas at the time they apply must monitor the Visa Bulletin and wait until his or her priority date is current in order to apply for legal permanent resident status. Once the priority date is current, the applicant must file Form I-485, Application to Register Permanent Resident or Adjust Status with the USCIS. Once Form I-485 is approved by the USCIS, the applicant will officially be a lawful permanent resident in the United States. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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