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The H-1B visa is the preferred U.S. visa as a consequence of its quite a few advantages, particularly the chance to use for a inexperienced card software. One of the crucial widespread phrases associated to the H-1B visa is “twin intent” which refers to sure momentary visa classifications with the choice of inexperienced card software. Not all momentary/nonimmigrant visas have these choices. On this information, we’ll discover the H1B to inexperienced card course of together with steps for the perfect possibilities of approval.
For example, some visa classes solely enable renewal for a similar standing, whereas some solely allow altering to a different momentary standing. For some visas, there are not any choices for renewal or altering of standing as these in these classes might want to return to their nation of origin upon expiration of their standing. This is among the superior benefits the H-1B Visa has over most different nonimmigrant U.S. visas.
People underneath H-1B or L-1 standing are continuously eligible to use for a inexperienced card for the best to dwell and work completely in the USA. This course of is named adjustment of standing. Acquiring an employment-based inexperienced card consists of a number of steps and a particular software course of. As a overseas employee on a brief standing like H-1B, you could be exploring your choices as your standing approaches its expiration date. Going by the employment-based inexperienced card course of whereas underneath H-1B standing has many advantages, particularly if in case you have an accredited I-140.
H1B to Inexperienced Card Course of
By submitting an I-485 you’re asking USCIS to regulate your standing from H-1B to inexperienced card (lawful everlasting resident) standing. International nationals are in a position to request an extension of their H-1B standing in one-year increments if their Labor Certification or I-140 was filed a 12 months (twelve months) previous to the start of their exemption from the conventional 6-year restrict (this takes under consideration any recaptured time overseas).
The exception is if in case you have an accredited I-140 and your precedence date shouldn’t be present (or in case your LCA has been pending for a 12 months). In these circumstances, you’ll have limitless extensions till you may full your inexperienced card software course of. You’ll be able to decide your precedence date by wanting on the I-797 despatched to you from USCIS approving your I-130.
It’s essential for the overseas employee to keep up lawful immigration standing whereas within the inexperienced card course of or making the change from H-1B to Inexperienced Card (EB-2/EB-3). So as to take action, you will need to submit an I-485 petition to USCIS–this usually happens after the USCIS has already accredited your employer’s I-140. In some situations, concurrent submitting could also be chosen which allows each the I-485 and I-140 petition to be submitted on the identical time.
Step 1: Discover a Certified U.S. Employer
You should first discover an employer who’s prepared to sponsor you to your inexperienced card by providing you a place that qualifies underneath an employment-based inexperienced card class. Many of the U.S. employment-based inexperienced card classes should be sponsored by an employer. This may be both your present H-1B employer or a distinct employer. Some necessities should be met earlier than an employer can qualify to sponsor an worker’s inexperienced card software.
In case your present employer doesn’t meet these standards, you could want to vary your job earlier than you may start your software course of. Additionally, not all H-1B job positions meet inexperienced card adjustment necessities. Because of this, you might also want to vary your present job place or tackle roles with greater obligations to garner the required work expertise to your selection of a inexperienced card out of the out there employment-based classes.
Step 2: PERM Labor Certification to Be Filed By Your Employer
Then, your employer should receive a PERM Labor Certification. Because of this the prevailing wage will have to be decided and ultimately paid as your wage, an in depth recruitment course of should happen for the place you’ll fill to make sure that no U.S. employees can be found, and an ETA 9089 kind should be filed.
Step 3: Type I-140 Petition
As soon as the PERM has been accredited, your employer should then file an I-140 Immigration Petition for Alien Employee. On Type I-140, your employer should show they’re in good monetary form, as that’s wanted to display their means to pay the wage for the job place. The shape should be submitted with the accredited PERM labor certification and a submitting charge. In case your petition is accredited, then the USCIS will ship you an Approval Discover. This means you can transfer to the subsequent stage of your inexperienced card software course of. Understand that an accredited I-140 doesn’t imply your standing has been adjusted from nonimmigrant to immigrant. You will want to attend till the top of the fifth step, which is I-485 petition approval.
Step 4: Anticipate the Precedence Date to Grow to be Present
As quickly because the USCIS receives your petition, that date is your precedence date. You will want to attend till your precedence date turns into present earlier than shifting on to the ultimate step. Examine the newest visa bulletin to study extra about present dates.
Step 5: File Type I-485
After you have a present precedence date, you may apply for an adjustment of standing by submitting the I-485 kind with the USCIS. Whether it is accredited, then you’ll obtain your inexperienced card.
Penalties of Delaying the Inexperienced Card Course of
The EB-2 visa legal professionals at VisaNation Legislation Group continuously obtain the query: What occurs if I wait till my H-1B standing expires earlier than making use of for a inexperienced card?
The reply is comparatively simple. By submitting an I-485 you’re basically asking USCIS to regulate your standing from H-1B to inexperienced card (lawful everlasting resident) standing.
The operative phrases to recollect are “alter your standing”. In case you are not ‘in standing’, which means that your H-1B has already expired, then you may’t technically alter it. For that purpose, the USCIS will often deny your request and you could be topic to the implications of remaining within the U.S. whereas “out of standing”.
Transferring from H1B to inexperienced card entails methodical steps that might lead to delays or denials if completed improperly. For that purpose, the H1B to inexperienced card course of is finest dealt with by a professional immigration lawyer.
How Quickly Can I Begin H-1B to Inexperienced Card Course of?
As an H-1B holder, you can begin your standing adjustment to inexperienced card standing as quickly as your employer is able to sponsor you. Annually, there are tens of hundreds of employment-based inexperienced card purposes submitted for processing. This course of entails numerous organizations, which embody the Division of Labor (DOL) and the USA of Citizenship and Immigration Companies (USCIS). On common, the DOL course of takes about 6 months, and the USCIS course of additionally takes a number of months.
For instance, a glance into the DOL statistics for PERM Labor Certification FY 2023 Q2 reveals that the H-1B employers had the biggest variety of employment-based PERM purposes for a inexperienced card. Out of 74,579 purposes for the primary two quarters of the 12 months, 32,386, which was 66.3% of the full determine got here from the H-1B class.
An extra assessment of the highest 5 occupations included:
- Software program Builders, Functions
- Software program builders, Programs Software program
- Data Tech, Undertaking Managers
- Laptop Programs Analysts
- Statisticians
This goes to point out how aggressive the method is and why the preparation work should be began as early as attainable. You must also think about the potential of an audit assessment in your software, which might additional prolong the processing time to greater than a 12 months. Because of this, it could be expensive to delay your software, as you can be out of standing in case your H-1B expires whenever you haven’t commenced your inexperienced card software course of.
When Does My H-1B Standing Expire?
You’ll be able to decide the date when your H-1B standing expires by wanting on the date listed in your I-94 Arrival/Departure Document. It is best to have obtained an I-94 card from the port of entry officer who carried out the inspection upon entrance to the U.S.
In case you entered the U.S. after which modified your standing to H-1B, the expiration date must be on the backside of the USCIS approval doc. People can seek the advice of the Customs and Border Safety database for an digital copy of their I-94.
As soon as your H-1B standing has expired, you’ll have a 10-day grace interval to rearrange preparations to return to your private home nation or to discover a approach to prolong your standing past the standard most.
H-1B Extension Previous 6 Years
For probably the most half, you’re unable to prolong your H-1B visa previous the 6-year most, which may be problematic should you want extra time within the U.S. Luckily, for these which can be making use of to go from an H-1B to a inexperienced card, you may petition to increase your H-1B in one-year increments when you wait.
For some international locations, it may possibly take years to your precedence date to turn out to be present, so so long as your I-140 has been accredited by the USCIS and you’re solely ready in your precedence date, you may look into extending your H-1B previous the 6-year restrict.
Moreover, if in case you have filed for an extension and haven’t but obtained a solution however your H-1B validation interval is ending, you’re lined underneath the 240-day rule. This rule states you can proceed working to your present employer (you can not change employers or switch your standing throughout this time) for 240 days after the expiration of your H-1B visa.
Nevertheless, in case your extension request is denied, you will have to stop working instantly, because the 240-day rule solely applies whereas the USCIS continues to be adjudicating your petition.
H-4 EAD
One other good thing about in search of immigration standing out of your H-1B is the chance it presents to your H-4 partner. So long as you may have an accredited I-140 with the USCIS, your partner will be capable of file for employment authorization by getting an Employment Authorization Doc (EAD). This may enable her or him to work wherever within the U.S. with little restriction.
Nevertheless, this EAD is tied to your principal H-1B visa. In case you had been to lose your H-1B standing, your H-4 visa dependents would lose their statuses as nicely, together with your partner’s EAD. Nevertheless, should you had been to not have an accredited I-140 with the USCIS (in case your employer had been to withdraw your petition or should you had been to try to switch employers), then the H-4 holder’s EAD could be legitimate till their expiration date, the place they might not be renewed except you had been in a position to have one other I-140 filed to interchange the one which was misplaced or withdrawn.
Associated Submit: Automated Extension Interval Elevated for Choose EAD Candidates
Regaining H-1B Standing After Expiration
In case your H-1B standing has expired and also you wish to attempt to regain it, there are a number of choices. USCIS could mean you can prolong your standing (underneath part 214.1(c)(4) regulation 8 C.F.R. should you meet their standards:
- The applicant or petitioner was delayed in submitting the extension as a consequence of extraordinary circumstances exterior his or her management.
- The alien hasn’t violated their nonimmigrant standing, stays a bonafide non-immigrant and isn’t the topic of removing proceedings or deportation.
To study extra about this feature, you may go to the USCIS web site about extending your standing.
EB-2 vs EB-3 Immigrant Visa
Figuring out when to ask your employer to sponsor you for a inexperienced card entails the best timing. Nevertheless, in lots of instances, should you wait too lengthy or postpone the method you could confront further and undesirable delays.
However, employers could hesitate with this request as a result of oftentimes overseas employees go away their administrative center after receiving approval for his or her inexperienced card. EB-2 and EB-3 visas are fairly standard choices for inexperienced playing cards.
Employment Second Choice (EB-2 Inexperienced Card Course of)
The EB-2 inexperienced card is for professionals holding superior levels or people with distinctive means within the arts, sciences, or enterprise.
What’s required? A job supply is critical for the inexperienced card course of EB-2 immigrant visas require and the U.S. employer should file a petition on behalf of the applicant. You should even have both a labor certification accredited by the DOL, a Schedule A designation, or set up that they qualify for one of many scarcity occupations within the Labor Market Data Pilot Program.
Aliens could apply for an exemption from the job supply and labor certification if the exemption could be within the nationwide curiosity of the USA. That is often the case for entrepreneurs, companions, and small enterprise house owners that can’t receive a job supply.
In these instances, the alien could file the I-140 petition together with a Nationwide Curiosity Waiver as proof that the enterprise enterprise will profit the economic system or tradition of the U.S. An EB-2 visa lawyer can finest determine which choice would lead to approval to your case.
Employment Third Choice (EB-3 Inexperienced Card Course of)
The employment third desire class is for expert employees, professionals holding bachelor’s levels and people who’re thought of different employees. These “different employees” embody guide and unskilled laborers that don’t carry out momentary or seasonal duties.
What’s required? Third Choice candidates require an accredited I-140 petition filed by the potential U.S. employer, proof of getting expertise within the desired subject, and one of many following gadgets:
- PERM Labor Certification
- Schedule-A Designation
- Proof that they qualify for one of many scarcity occupations within the Labor Market Data Pilot Program.
Expert employees should have not less than two years of expertise of their related fields whereas unskilled employees could suffice with on-the-job coaching and the power to carry out unskilled labor. You will need to observe that the “unskilled employees” subcategory has a distinct set of precedence dates from the opposite EB-3 subcategories.
In case you are making the switch from H-1B to inexperienced card standing, then your employer ought to have already obtained a PERM Labor Certification in your behalf.
H-1B to Inexperienced Card Processing Instances
Here’s a breakdown of the processing occasions related to every step of the H-1B to inexperienced card course of:
- The PERM Labor Certification can take wherever from six months with out an audit to over eighteen months with an audit.
- Having your I-140 accredited is determined by how quickly your precedence date will probably be present. If that won’t occur for a number of years, the USCIS could push your petition again to be processed nearer to your precedence date.
- Ready to your precedence date to turn out to be present with the posted DOS remaining motion dates may be the longest ready interval for some candidates. Check out the most up-to-date visa bulletin to see the place your precedence date falls. This wait time closely is determined by which nation you come from.
- The processing time to your I-485 is determined by which service heart it has been despatched to. Some service facilities are busier and have a backlog whereas others could have a really brief ready interval. You’ll be able to seek advice from this database to see the present wait occasions.
On the finish of the day, the processing occasions fluctuate wildly. An EB-2 applicant from Mexico whose employer doesn’t encounter a PERM audit could possibly transition from H-1B to inexperienced card standing quicker than somebody from a distinct nation. Nevertheless, an Indian EB-3 applicant will most probably discover themselves ready over a decade for his or her inexperienced card to course of.
With a purpose to get a greater grasp of what the ready occasions will probably be in your specific state of affairs, you should definitely seek the advice of together with your immigration lawyer.
EB-3 to EB-2 Porting
There’s a course of referred to as porting that permits inexperienced card candidates to switch their petition to a distinct inexperienced card standing. In case your I-140 petition for an EB-3 has already been filed and you’re ready in your precedence date, your employer may file a brand new petition in your behalf underneath EB-2 standing. A major benefit of going from EB-3 to EB-2 through porting is the shifted precedence date. In case you take a look at the latest visa bulletin, that provides you with a sign on whether or not porting might be helpful for you. In case your EB-3 or EB-2 precedence date is similar or sooner than the ultimate motion date in your inexperienced card class, which means a visa quantity is out there and you may apply for lawful everlasting resident standing. If completed on the proper time, you can save years of ready to your inexperienced card by porting. Bear in mind, nevertheless, that to take action requires {that a} new place to be considerably completely different and extra stringent than the present one so as to make the soar.
Nevertheless, to ensure that the second petition to be accredited and substitute the primary, you will need to not solely purchase the private {qualifications} for an EB-2 (e.g. grasp’s diploma, distinctive means), you will need to additionally purchase a place that requires these new {qualifications}. So acquiring the next schooling diploma doesn’t robotically qualify you however it may possibly assist your case if the brand new place requires that superior diploma.
Can I stick with the identical employer and do EB-3 to EB-2 porting?
In some instances, you may stick with the identical employer however know that will probably be extra closely scrutinized by USCIS as a result of it has been exploited up to now. The EB-2 job must also be 50% completely different from the EB-3 job.
Be ready to defend your self once more the next questions:
- Does this promotion make sense? Are you being promoted from “Advertising and marketing Analyst” to “Advertising and marketing Supervisor” or to “Senior Product Supervisor”?
- Is the job a well-established place throughout the firm?
- Is your employer actively looking for a employee to interchange your EB-3 place?
- What number of different staff has your employer helped with EB-3 to EB-2 porting?
Communicate together with your immigration lawyer if you’re contemplating this delicate course of.
H-1B to Citizenship
At present, there isn’t any direct path from an H-1B visa to citizenship. In reality, there isn’t any direct path from any nonimmigrant visa to citizenship. With a purpose to turn out to be a citizen, you will need to first receive a inexperienced card by the means we define on this submit. As soon as you’re a lawful everlasting resident, you will have to just be sure you qualify, which means that you’ve both been a inexperienced card holder for 5 years, you may have been married to a U.S. citizen for 3 years, or you may have served within the U.S. navy.
After that, you will have to file an N-400 software for naturalization and undergo a citizenship interview. There, you’ll endure a check that can look at your grasp of the English language in addition to your understanding of primary American civics and historical past. In case you cross, it is possible for you to to swear the U.S. Oath of Allegiance and turn out to be a citizen.
Associated Submit: Are You Checking USCIS Case Standing and Processing Instances Precisely?
EB-3 vs EB-2 Inexperienced Card Course of Charges
In comparison with the H-1B visa, the EB-2 and EB-3 course of charges are comparatively small. Your employer should pay $700 for submitting the I-140 petition. As soon as that’s accredited, you will have to submit an I-485 which has a charge that varies in keeping with the place you fall on this chart.
H-1B to Inexperienced Card Denial
As defined above, the H-1B to inexperienced card software is a protracted course of with numerous steps. Whereas all beneficiaries and petitioners desire a clean course of all by, this isn’t at all times the case. There’s a chance of going through a denial at any of the phases. For example, your PERM labor certification software may be denied by the DOL. Additionally, the USCIS has all the best to disclaim your standing adjustment petition in the event that they deem it match. Prior to now few years, the denial price for employment-based inexperienced card purposes has been rising. It’s, subsequently, essential to make sure strict compliance with the directions whereas submitting your software. H-1B to inexperienced card software may be denied for a lot of causes, which embody:
- Well being-related points out of your immigration medical examination outcomes
- Previous felony report
- Violation of your immigration standing
- You would not have sufficient supporting proof required for the class you select
- Failure to fulfill the work expertise and tutorial qualification necessities
- Not submitting your petition correctly
- Employer’s incapability to show the power to pay the required wage
What to Do If Your Utility is Denied
Receiving a inexperienced card denial discover isn’t the top of your software course of besides you don’t wish to push additional. There are a number of choices to discover to see should you may get the choice overturned. You’ll be able to request a movement to rethink or file an attraction.
A movement to rethink may be filed should you and your lawyer are sure that the denial was made in error by the evaluating officer answerable for your petition. You will want to again it up with robust proof. An attraction means you desire a greater authority to take one other take a look at the case.
The case could also be reviewed by three completely different events, together with the officer who made the primary choice, the Administrative Appeals Workplace (AAO), and the Board of Immigration Appeals (BIA). Motions and appeals may be considerably advanced and time-consuming, however they’re routes price taking, particularly if you’re positive you offered all of the required documentation.
How We Can Assist H1B Inexperienced Card Course of
The H1B to inexperienced card course of entails many intricate steps and may be overwhelming for many individuals. With one thing as essential as acquiring a inexperienced card, it’s extremely suggested to hunt the assistance of a talented immigration skilled. Our staff has helped hundreds of people navigate the inexperienced card course of for H1B. Give us a name to schedule a session as we speak.
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