I’m on an H-1B Visa, When Should I Start the Green Card Process?

By Brianne Donovan, Immigration Attorney

You’re on an H-1B visa – congratulations! We understand how difficult and complex the U.S. immigration process can be. Having an H-1B visa provides a sense of security for three years initially and can be extended for up to an additional three years. However, you may be wondering, “what do I do after my time on H-1B runs out?” or “when should I start looking at longer-term solutions?”

H-1B visas allow for dual intent, which means a person can hold H-1B status and start the permanent residence process. Because of this, you can start thinking about applying for permanent residency at any time while initiating the H-1B process or being on H-1B. Talking with your employer and a qualified immigration lawyer early on can be beneficial to plan for longer-term U.S. immigration.

What is the employment based green card process?

Applying for an employment-based green involves a multi-step process of having:

  • a permanent labor certification (known as a PERM);
  • an approved I-140 petition; and
  • an approved I-485 application (if filing from the U.S.) or an approved application for green card filed through consular processing (if filing from outside the U.S.).

Because of the many factors and stages that go into filing a green card, it’s smart to begin considering an employment-based green card at least 3 years before your H-1B maxes out.

What if there is not a green card available to me?

There are a limited number of employment-based green cards available each year. Whether a green card is immediately available for you depends on three factors:

  • The country in which you were born;
  • Your employment-based category; and
  • Your priority date.

Please check out our post here explaining more about visa availability and priority dates.

Many prospective immigrants from countries with high employment-based visa application numbers, such as India and China, may face delays of several years before a green card becomes available. While it may seem counterintuitive, beginning the process for PERM certification early for foreign nationals with this issue can be beneficial.

By applying for a certified PERM and subsequently, filing an I-140 petition, a foreign national can join the queue for visa availability. Because the priority date is based on the date of filing the labor certification and preserved with an I-140 approval, a foreign national may get in the queue much sooner by applying at the beginning of their H-1B status, as opposed to waiting until their H-1B status is near expiring.

Additionally, an approved I-140 may allow you to extend your H-1B status beyond the 6th year if a green card is not readily available to you.

Although 6 years may seem like a long time, it is always best to plan ahead. We recommend you speak with a qualified attorney and your employer sooner, rather than later, to ensure you have the best path forward.

As always, the above information is for educational purposes only and is not legal advice. Please speak with a qualified immigration lawyer before taking action. If you need help navigating the immigration process with confidence, please contact us today to get the process underway! We are immigration lawyers in Richmond, VA but we serve clients throughout the U.S. and around the world. You can call us at 804-396-3412 or send us an email at info@sumnerimmigration.com. We look forward to hearing from you!