H1B to Green Card Process

Foreign nationals are able to request an extension of their H-1B status in one-year increments if their Labor certification or I-140 was filed a year (365 days) prior to the beginning of their exemption from the normal 6-year limit (this takes into account any recaptured time abroad).

The exception is if you have an approved I-140 and your priority date is not current (or if your LCA has been pending for a year). In those circumstances, you will have unlimited extensions until you can complete your green card application process.

It’s crucial for the foreign worker to maintain lawful immigration status while in the green card process or making the change from H1B to Green Card (EB2/EB3). In order to do so, you must submit an I-485 to USCIS–this generally occurs after the USCIS has already approved your employer’s I-140. In some instances, concurrent filing may be selected which permits both the I-485 and I-140 petition to be submitted at the same time.

Here are the steps for transitioning from H1B to green card status:

1. You must first find an employer who is willing to sponsor you for your green card by offering you a position that qualifies under an employment-based green card category. This can be either your H1B employer or a different employer.
2. Then, your employer must obtain a PERM Labor Certification. This means that the prevailing wage will need to be determined and eventually paid as your wage, an extensive recruitment process must take place for the position you will fill to ensure that no U.S. workers are available, and an ETA 9089 form must be filed.
3. Once the PERM has been approved, your employer must then file an I-140 Immigration Petition for Alien Worker.
4. As soon as the USCIS receives your petition, that date is your priority date. You will need to wait until your priority date becomes current before moving on to the final step.
5. Once you have a current priority date, you can apply for an adjustment of status by submitting the I-485 form with the USCIS. If it is approved, then you will receive your green card.

Consequence of Delaying the Green Card Process

I frequently receive the question: what happens if I wait until my H-1B status expires before applying for a green card?

The answer is relatively straightforward. By submitting an I-485 you’re essentially asking USCIS to adjust your status from H1B to green card (lawful permanent resident) status.

The operative words to remember are “adjust your status”. If you are not in status, meaning that your H-1B has already expired, then you can’t technically adjust it. For that reason, the USCIS will usually deny your request and you may be subject to the consequences of remaining in the U.S. while “out of status”.

Moving from H1B to green card involves methodical steps that could result in delays or denials if done improperly. For that reason, the H1B to green card process is best handled by a qualified immigration attorney.

How Prizant Law Can Help

Changing your status from the H1B to the green card process can be complex without the help of a green card lawyer. Prizant Law can assist you in determining the best course of action for your particular case. We have handled a range of complex employment-based green card cases for professionals in a wide range of industries including IT, healthcare, retail, hospitality, finance.