Employment-Based Green Card

What is the H1B to Green Card process?

Many H1B visa holders want to become permanent residents of the United States. This can be done by obtaining an American green card. Since the H1B visa is dual in intent, this means that those who hold it are eligible to apply for permanent residency.

The process of obtaining a US green card from H1B visa is called transfer from H1B to green card or employment-based green card. In addition to this, there are also other types of Green Cards such as:

  • Family green card
  • Green card based on political asylum
  • Adoption-based green card
  • Green card for refugees
  • Green card based on diversity

For the employment-based Green Card, it can take months or years to obtain the Green Card. There are several steps involved and agencies require extensive documentation. The process can get complicated, so most agencies recommend hiring an experienced attorney. They can guide you through documentation and deadlines for a smoother transition.

The most important fact you need to know is that the employment-based Green Card process must be initiated by your employer in the United States. The employee or anyone else cannot initiate the Green Card application process.

For this reason, before you begin the process of obtaining a Green Card, you must find a US employer willing to hire and sponsor you.

H1B to Green Card Process:

Here are the steps of the H1B to Green Card process:

  • Obtain PERM labor certification.
  • File Form I-140, Immigrant Petition for Foreign Workers.
  • File Form I-485, Adjustment of Status.

Step 1: Get PERM labor certification

In 2005, to make it easier for applicants to obtain employment-based Green Cards, the United States introduced PERM. The PERM or Program Electronic Review Management system is linked to the Department of Labor (DOL). It is electronic, reducing the time it takes to apply and the paperwork.

To begin the process of obtaining a Green Card for their employees, employers must apply to obtain PERM certification from the DOL. This includes these steps:

  • Registration with DOL
  • Obtain approval for prevailing wage determination
  • Conducting recruitment processes
  • Submission of ETA 9089 form
  • Obtain the PERM decision
  • Registration with DOL

Any employer who wishes to sponsor a foreign worker to obtain Green Card from an H1B visa status must register with the DOL. After completing the online form, they will receive their user ID, a password, and a PIN number from the DOL in their email.

The DOL has created a guide on how to register online, which employers can follow.

Obtain approval for determining the prevailing wage

The DOL also requires employers to pay their foreign workers the prevailing wage. This means that they will pay the full wage determined by the state and no less. Employers can obtain prevailing wage certification from State Employment Services (SESA) or State Workforce Agencies (SWA).

After obtaining the certification they can submit it to the DOL. The certification must be valid at the time of filing.

Conducting recruitment processes

After obtaining prevailing wage determination certification, employers must demonstrate to the DOL that they were unable to find a qualified U.S. citizen for the job position. For this reason they have to hire a foreign worker and want to sponsor the worker to obtain the Green Card.

To demonstrate that no U.S. citizens qualify, employers must follow these procedures:

  • Place 2 print ads in newspapers for 3 consecutive days, one of which must be a Sunday. The advertisement must be published in a newspaper distributed in the geographical area in which the work will be carried out.
  • They can place an ad in a national magazine instead of one of the newspaper ads
  • Furthermore, they should also conduct another recruitment process such as:
  • Place an ad on the website
  • Conduct campus recruiting
  • Attend job fairs
  • Post radio or television ads, etc.

The professional qualification, detailed description, requirements and name of the employer must be visible in any advertisement

After conducting these recruitment processes, they must submit a report to the DOL to demonstrate that no U.S. citizens were eligible for the job position. The report must include all of the employer’s efforts to find U.S. employees and the results. They must also state the reasons why U.S. citizens who applied were rejected. If they have fired previous foreign workers, employers would also need to demonstrate that they have taken these fired workers into consideration before wanting to hire a new H1B employee and sponsor them for the Green Card.

The DOL retains the power to supervise hiring procedures and keep an eye on all activity. The employer should retain recruiting process files for 5 years in case of a DOL audit.

ETA 9089 form file

Following the prevailing wage determination and recruitment, the employer must submit ETA Form 9089. The Application for Employment Certification is this form. It can be filed by mail or electronically.

The form should demonstrate that the employer has met all requirements and that the job position is suitable for the foreign worker to upgrade from an H1B to the Green Card.

Obtain the PERM decision

After DOL officials review all documents, they can approve or deny PERM certification. In some cases, they may require an audit or additional documents to reach a decision. Applicants should anticipate hearing from PERM 45 to 60 days after submitting their application.

Step 2: File Form I-140

The next step to go from H1B to Green Card is to fill out Form I-140 or the Foreign Worker Immigrant Petition. After obtaining PERM approval, the Form I-140 demonstrates that the employee will receive the salary advertised at the recruiting stage and will be eligible to work and live permanently in the United States.

When the employer submits Form I-140, he will receive a visa number, accompanied by a date. The priority date indicates when the case will be processed. If that date is current, the employee may also file Form I-485 at the same time as Form I-140. When this happens, the process is called concurrent storage.

Step 3: File Form I-485

The final step that concludes the H1B for Green Card process is for the employee to apply for adjustment of status. This is done by completing Form I-485 or the Application to Register Permanent Residence or Change Status.

This form is submitted to USCIS and, if approved, will allow the employee to work and live in the United States permanently as a legal entity. There are two ways to request adjustment of status:

If located in the United States, employees only complete Form I-485 and do not need to follow any other procedures. The only rule is that they must apply while they have a valid H1B visa. If the visa has expired, they will have to return to their home country. The only exception is if the employee has an approved I-140 and its date is out of date. In this case they will be granted an unlimited extension until the conclusion of the procedure.

If located outside the United States, employees will need to go through consular procedures. Consular processing means that the employee requests adjustment of status through the U.S. Embassy in her location. These are the steps to follow for consular processing:

  • After the employer petitions USCIS and gets approval, USCIS sends the application to the National Visa Center (NVC)
  • NVC provides the company and employee with a case number.
  • When your priority date becomes effective, the NVC will send you the applicable fees to pay
  • It will then send you to complete the Affidavit of Support otherwise called Form I-864 (costs approximately $700)
  • NVC will also direct you to complete Form DS-3032 or Choice of Address and Agent. Those who are electronically processing the H1B to Green Card will need to complete Form DS-261 instead of DS-3032.
  • After completing these forms, you should submit them to the NVC for processing
  • NVC will then send you the Form IV or Immigrant Visa Applicant Instructions Package, which costs approximately $400
  • The candidate is invited for an interview after all documentation has been reviewed. The family members accompanying them should also be present and before the interview they will have to undergo a medical examination for the visa.
  • After all procedures, whether the applicant is in the United States or abroad, USCIS will process the documents and inform him of the decision. If your application is approved, you will receive a stamp in your passport and subsequently the physical Green Card. You will have successfully transitioned from an H1B to a US permanent resident with a Green Card.

Should I get health insurance after receiving my green card?

Given the high expense of healthcare in the US, getting a health insurance coverage is definitely advised. More details on health insurance options for Green Card holders may be found here.

Employment-Based Green Card Categories:

Each year approximately 140,000 people qualify for an employment-based Green Card. Each country receives 7% (9,800 people) of this share, no matter how large or small the country is. There are 5 categories of employees who can apply to switch from H1B to Green Card. Each of them receives a portion of that 140,000 fee. The categories are as follows:

E-B1 or Priority Workers

The EB1 category is the one that most people want to apply to, but few qualify for it. Priority dates are usually current, so they are processed fairly quickly. Those who qualify for E-B1 are:

  • Exceptional professors and researchers
  • Managers and executives
  • Those with extraordinary ability in business, the arts, sciences, education, or athletics
  • Each country gets 2,802 of these visas plus unused E-B4 and EB5 visas.

E-B2 or Professionals with exceptional skills or advanced degrees

Approximately 2,802 visas plus unused E-B1 visas are issued to E-B2 applicants each year. These include:

  • Those with extraordinary abilities in art, business and science
  • Those with advanced degrees (Master’s or PhD)
  • Doctors who will serve in underserved areas of the United States
  • E-B3 or Qualified/professional workers
  • In addition to the 2,802 visas not utilized by E-B2, this group also receives those. The following can benefit from the EB3 Green Card:

Those with a degree

  • Qualified workers with at least two years of experience or training
  • Unskilled workers
  • E-B4 or Special Immigrants
  • The E-B4 category gets 695 visas per year and those who are eligible are:

Those who work or have previously worked for the U.S. government abroad
Religious workers
Those who work for the US military as translators
E-B5 or investors
No more than 3,000 visas are reserved for the E-B5 category. Those who qualify are investors who will create at least 10 full-time jobs in the United States and invest $500,000 to $1,000,000 in the U.S. economy.

H1B to Green Card Commissions:

Getting an employment-based Green Card is expensive. It includes expenses borne by both the employer or sponsor and the employee. These are the fees to pay:

  • Legal Fees: Employers must pay $2,000 to $5,000 for the attorney to file the PERM certification. It also takes a few thousand dollars to fill out forms I-140 and I-485. The fees for these two forms can be paid by the employer or the employee.
  • Advertising fees – which depend on the state and the medium used to advertise the job position. Fees range from hundreds to thousands of dollars. These taxes must be paid by the employer.
  • Application Fees: The application fee for the I-140 is $580 and the application fee for the I-485 is $1,070 for each dependent. These taxes can be paid by both the employee and the employer.
  • In general, the cost of filing for a Green Card on an H1B visa can reach $10,000. Once accepted, nevertheless, the individual is permitted to live and work in the US indefinitely.

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