Permanent Residence (Green Card) and Ending H-1B Employment
The registration period for the FY 2025 H-1B cap is now open and will run through noon Eastern Time on March 22, 2024. If you are participating in this year’s lottery, we wish you the best of luck in your selection. In the past two months, we have published two articles about the H-1B visa to help prospective employers and workers to prepare for their H-1B employment. Click here to view previous articles. In this last article about H-1B, we will discuss pathways to obtain permanent residence in the United States (getting a green card).
Employment-based green card:
Permanent labor certification process and immigrant petition for foreign workers. Generally speaking, a foreign individual is allowed to be employed for a maximum of 6 years in H-1B status. The time spent outside of the United States, for pleasure, business, or otherwise, during an H-1B validity period of stay does not count toward the 6-year limit; and thus, it is important to keep a record of your travel outside the United States and recoup the time spent outside the United States. The USCIS can approve and grant H-1B petitions and extensions for a temporary period of up to three years. Thus, an H-1B employer who seeks to continue to employ an H-1B worker after the initial period granted will likely need to file a petition to request an extension of stay before the worker’s current H-1B status expires. If an employer wants to continue to employ an H-1B worker beyond the 6-year maximum, they may consider filing an immigrant petition (Form I-140) for that H-1B worker by first going through the permanent labor certification (PERM) process.
An immigrant petition by an U.S. employer for the benefit of a foreign worker is independent of the H-1B employment. In other words, when an U.S. employer files a petition to sponsor a foreign worker for an employment-based green card, that worker does not need to be currently employed, whether or not in H-1B status, by that U.S. employer. Given the temporary nature and 6-year limit of the H-1B visa, filing an immigrant petition for their H-1B workers is an option H-1B employers may consider when they seek to continue to employ their foreign workers on a more permanent basis and beyond the 6-year limitation. H-1B workers may extend their H-1B status beyond the 6-year limit when: (1) their PERM labor certification application (ETA 9089) has been filed and pending for 365 days or more; or (2) they have an approved immigrant petition (Form I-140) and is waiting for a visa number to become available.
The permanent labor certification process and immigrant petition for foreign workers is a topic that is worth the discussion of a separate article. Please stay tuned for more information on that topic. Meanwhile, please feel free to contact us if you have questions about your employment-based green card petition.
To ensure continued employment of their H-1B workers, we recommend employers who want to sponsor their H-1B workers for green cards to plan early and proactively, as the timeline for the PERM process and immigrant petition varies from time to time. Waiting too long to start the process may lead to the expiration of a worker’s H-1B status and cause a disruption in his or her continued employment in the United States. As a general rule of thumb, we recommend employers to start seriously considering the labor certification process around 3 years before an H-1B employee reaches the 6-year maximum.
National interest waiver. Instead of having an employer to sponsor them for an immigrant visa, foreign workers who have an advanced degree or exceptional ability in their professional field may self-petition by showing that it is in the interest of the United States to waive the job offer and labor certification requirements (“national interest waiver” or “NIW”). USCIS may grant a request for national interest waiver if the foreign worker shows:
The work the individual proposes to undertake in his or her field has both substantial merit and national importance in areas such as business, entrepreneurship, science, technology, culture, health, and education.
The individual has the education, skills, knowledge, and record of success to undertake the proposed work.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
If you are considering a national interest waiver, we recommend you to work with a legal counsel to evaluate your professional background and discuss the supporting documentary evidence you may consider gathering.
Marriage-based green card:
The H-1B visa is a “dual-intent” status. Meaning, a person in H-1B status is permitted to have immigrant intent and pursue permanent residence in the United States. If you are an H-1B holder and you are married to a U.S. citizen or a lawful permanent resident, your spouse may file a petition to sponsor you for a marriage-based green card.
Ending your H-1B employment, either voluntarily or involuntarily:
Usually, H-1B workers are given a 10-day “grace period” by USCIS on their H-1B Approval Notice or by CBP on their I-94 entry record, to leave the United States after the end of their authorized validity period. For employees whose employment was terminated prior to the expiration of their H-1B validity period, they may remain in the United States for a period of up to 60 consecutive calendar days from the date of termination or until the end of their authorized validity period, whichever is shorter. In other words, H-1B workers who have been laid off may avail a discretionary grace period of up to 60-day after their employment relationship terminates.
H-1B workers who wish to continue to remain and work in the United States in H-1B status may utilize this 60-day discretionary grace period to seek new employment opportunities (to transfer their H-1B employment) or change to a different status. During the 60-day discretionary grace period, a new employer may file an H-1B change of employer petition on behalf of the H-1B worker to employ him or her in H-1B status. Alternatively, H-1B workers who wish to remain in the United States may utilize this discretionary grace period to apply to change their nonimmigrant status to other nonimmigrant status, such as H-4 (for H-1B dependents), F-1 student status, B-1 visitor status, E-2 (for treaty investors), etc. If you are exploring your options to remain in the United States, we strongly recommend you to work with a legal counsel to evaluate your individual situation and explore the options available to you.
H-1B workers who wish to remain in the United States but unable to find a new employer to timely file an H-1B change of employer petition, or unable to timely file a change of status application, may need to leave the United States at the end of the grace period.
For workers who choose to leave the United States after the involuntary termination of their H-1B employment, their employer may be required to pay for the reasonable transportation costs of their trip back to their home country.
Options available to H-1B employees looking for more permanent immigration options vary depending on the individual’s situation and current immigrant policies. When you are seeking a green card or anticipating changes to your H-1B employment, we highly recommend you to work with a legal counsel so that you may plan proactively and take into consideration critical factors such as processing timeline, maintaining valid immigrant status, and other facts pertaining to your individual situation.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
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