H1b to Green Card Pathways
Now that you are on an H1B visa, it is time to plan your next steps. The following information lays out the 5 different pathways to obtaining a Green Card after you have completed your 3 year return of service. I have chosen pathway 4; however, there are other pathways to follow if you do not have a significant other that is a United States Citizen. Current politics only allows you on an H1b for a total of 6 years. In the past, if you were pending status for a green card after 6 years, you were still able to continue to live and work in the United States, but now your green card must be obtained within those 6 years.
There are 5 different pathways that are available to H1B visa holders to obtain a green card. Here they are listed below.
1. Employment sponsorship (EB-2)-Dependent on the employer
2. EB-1 (extraordinary ability/superstar status)-Dependent on yourself
3. National Interest Waiver-Dhanasar-Dependent on yourself
4. Marriage to an American Citizen-Dependent on the US citizen
5. EB-5 investor green card-Dependent on yourself
Notes in general:
-You are not wedded to one single pathway (you can apply for multiple pathways at a time, unlike applying for a J1 waiver in multiple places at once).
-You can switch from one pathway to the next at any time and can file all at the same time too (e.g. Employment sponsorship, marriage, extraordinary ability)
-If filing through work and marriage at the same time and the labor certification portion is completed by a particular county/job and all monies are paid by them, that money is lost (it’s a risk on a particular county/job’s part) and they legally cannot ask for that money back.
EB-2 (Employment sponsorship)
o For people holding advanced degrees
o Canada does not have a backlog like other countries do (can be decades of backlog)
· Length of time for the labor certification process: 18-24 months
o Labor certification generally easy for doctors
o A particular county/job county must do the bare minimum for advertisements for the job position to try to recruit an American, qualified application
o Applicant does not have to take the position and a particular county/job county does not have to hire them but if an applicant does apply and gets rejected by a particular county/job county because they want to hire you, you have to wait another 6 months before the job can be advertised again
o In my lawyer’s experience, 2-3 physicians experienced this delay (not specifically forensics).
o Takes about 5-6 months to prepare for department of labor submission
o Determination of acceptable salary takes about 12 weeks
o Labor commission takes about 4 months to review and certify the completed application
· I-140 is the immigration petition sponsored by a particular county/job County and this must contain the appropriate salary for my petition to be acceptable.
o Premium processing is available
· This process can begin any time and if they are willing to sponsor you, and you can approach them within a year and a half from your start date
o The critical point to approach them is to start filing in your 4th year of your H1b visa, as you must be in the country while this is being processed.
· After the approval of the labor certification, there is another filing that must be done called an “Adjustment of Status” which is completed after the 3 years of J1 waiver return of service.
o Form is called I-485
o You must be in the USA when this is filed and this involves background check, fingerprints, etc.
o Adjustment of status takes about 6-8 months to process and once approved, you must go for an interview at a local USCIS department.
o After the interview, hopefully you get an approval (time span unknown) and after you get an approval, you will get your green card in the mail within 30 days.
· A particular job/County must pay all costs incurred with the labor certification and lawyer fees
o Costs for Legal is $5500
o Cost for labor certification is between $7000-$8000
o Cost for advertisement for the job position is $1500-$3000
· I-140 I-485 application costs can be paid by anyone and is approx. $8000
o Billing is in bench marks rather than a lump sum (so budget accordingly)
Frequently asked questions:
· What if I get fired on my green card?
o You lose the green card and get deported from the country
· What if I get fired/the office closes or downsizes on my H1b?
o You have a 60 days grace period to find a new employer (in any state) willing to hire you on an H1b and they can file for a green card for you.
· After I get my green card (if sponsored by a particular county/job) I should wait “a few months” before I leave the job to move?
o 3-6 months is reasonable to stay on the job prior to leaving
o Do not leave the day of or a few weeks later after getting your green card because once citizenship application comes up, they can look back and see that you left your job and you were insincere to the job that sponsored you.
EB-1 (Extraordinary ability visa)
o Can be initiated and sponsored by yourself
o USA looks at how important my job is to the country
o You must receive accolades in your field, contribute scholarly articles, in practice awards, have a high salary and take a leading role in an organization (e.g. a National society)
o Must have a stellar CV and standards are very high for this category
o It is a very subjective process
o Can initiate this yourself with the lawyer 1 year before service commitment of 3 years ends
o Therefore, you have 2 years to become a superstar
o H1b extension is required for this process as it will run over the 3 years
o Can do this process on the side while an EB-2 is in the works
o Was advised to not put all eggs in this basket
National Interest Waiver-Dhanasar
o Working in a field needed by the USA to advance the work in the field
o Usually for researchers but this pathway can be considered for forensics as you are doing work in the opioid epidemic
o Supported by recommendation letters
o Publications, research/case studies are highlighted in the application
o Need to show a distinction in the field of you career (e.g. forensic pathology)
o A particular county/job does not have to pay for anything in this application as you can apply for this on my own.
Marriage to an American Citizen
o Can be done at any time during the 6 years on H1b
o Getting married during service years—no impact on your visa status (H1b will not change), and you can still travel in and out of the country
o Filing can be done after your 3 service years are completed and usually the process of starting the application is 2-3 months prior to finishing your service years.
o Process takes 6-8 months to complete (see more details below).
o Requires an H1b extension filed by a particular county/job to keep you in the country during processing
o This means you can work in a particular county/job while the paperwork is processing
In the event of a divorce after obtaining green card status
o Once married, you get a conditional green card that lasts for 2 years if you were married within 2 years of your visa expiring (to ensure this is not just a marriage for a green card only):
§ After 2 years, you must reapply for a green card again with proof that you are living together, cohabitating, etc.; in general show that this not a marriage just based on getting a green card, but a bona fide marriage demonstrating joint accounts, on each other’s health insurance plans, living together…
o If you get divorced in those 2 years and it was a legitimate marriage, you can request a waiver of status to explain that it was a legitimate marriage and things just did not work out.
§ If waiver approved, you are still on the green card and will be switched over to a 10 year green card
o Waiver can be denied if you cannot prove that it was a bona fide marriage.
EB-5
o Requires a sizeable investment of $500,000 to $1,000,000
o You do not have to own your own business
o Business must be able to employ minimum of 10 Americans
o You can start investing now but you cannot complete the process until after 3 years of your service time
o There are two steps involved in the process where you get a 2 year green card and then convert to the 10 year green card
Other points to note
o H1b visa extension must be initiated 6 months prior to your expiration of your visa
o After your 3 service years are completed in your sponsoring state and you choose to move, you can find another employer to sponsor your H1b, move to that state and they can apply for your green card
o You can approach a particular County/job for green card sponsorship after about 6 months to a year of working there to ensure a good fit and to not appear like you are going after a green card right away after just getting your H1b
o Under extraordinary circumstances, you can switch out of the H1b at a particular county/job and move to another state under an H1b (weather and generalized discomfort or ending of a relationship due to distance or impact on a relationship that is local does not qualify)
o See Toxic work environment for a reason that would qualify under the “extraordinary circumstances” clause
§ Very clear and sequential documentation is required to use this exit strategy
