If you are currently working in the United States with an H-1B cap-exempt visa, you may want to transition your H-1B cap-exempt to a green card. There are several reasons why you may want to do this, especially since being a green card holder comes with many benefits. However, there is a specific process you will need to go through to make this transition, and it is essential that you follow each step correctly to avoid any issues. Here is everything you need to know about transitioning from an H-1B cap-exempt to a green card and how long this process takes.
Transitioning H-1B Cap-Exempt to Green Card
The typical H-1B visa program has a cap on the number of visas provided each year, which is why applicants have to register in an annual lottery for the chance to be selected. Because of this, H-1B visa applicants face very low odds of getting the visa that they want, which is why there is a cap-exempt H-1B option available. Applicants can apply for this type of visa if they have been offered a job from a specific type of organization that provides a unique role that contributes to the public interest.
If you are already in the U.S. with an H-1B cap-exempt visa, you may want to change this to a green card so that you can achieve green card holder status. One of the benefits of having this type of visa is that it is a dual intent visa, which allows you to legally enter the U.S. as well as enter with the intention of becoming a permanent resident or a green card holder.
The good news is that transitioning an H-1B cap-exempt to a green card is a relatively straightforward process and includes the following steps:
- Find a U.S. Employer: One of the first steps to get a green card from an H-1B visa is to find a U.S. employer to sponsor you. The position has to qualify under an employment-based green card category, and either your current H-1B employer or a different employer can act as your sponsor. Keep in mind that H-1B job positions must meet the requirements for transitioning to a green card, so you may have to change your current position.
- PERM Labor Certification: Because the path to a green card from an H-1B visa is through applying for an employment-based green card, you will need PERM labor certification. Your employer needs to obtain the PERM labor certification and file it as your sponsor. Part of this process is a rigorous recruitment process to ensure there are no U.S. workers who could fill the position, as well as determining the wage you will be paid.
- Form I-140 Petition: After the PERM certification has been approved, your sponsor then needs to file form I-140, which is a petition for alien worker. On this form, your employer will have to prove that they are in the financial shape necessary to pay the job position salary.
- File form I-485: When the USCIS receives the I-140 petition, that date will be your priority date. You will need to wait for the priority date to become current before you can move to file form I-485. This form allows you to apply for adjustment of status, and if this is approved, you will receive your green card.
Before you begin the process of getting a green card from an H-1B visa, you need to hire an immigration attorney. An immigration attorney will be able to help you throughout the entire process, as well as help the employer who will be sponsoring you. Having a skilled attorney on your side can help you avoid common issues, such as incorrectly filling out forms or not providing enough documentation.
Cap-Exempt Vs. Cap-Subject H-1B Visas
Cap-exempt and cap-subject H-1B visas have some differences when it comes to eligibility requirements. A cap-exempt H-1B visa provides a more straightforward approach to coming to the U.S. since you aren’t subject to the cap and the long wait time that cap-subject visas are. However, it can create more challenges when it comes to finding the right employer and the right type of job to meet the cap-exempt H-1B visa requirements.
Here are the main things that make these two types of visas different:
- Cap-exempt visas have no limits, whereas cap-subject visas have a 65,000 limit each fiscal year.
- Cap-exempt visas require a specific type of organization with a job in the public interest, while cap-subject visas are usually sponsored by private employers across industries like technology and healthcare.
- Cap-subject H-1B visas have to be applied for certain times of the year, while cap-exempt H-1B visas can be applied for at any point.
Cap-Exempt H-1B to Green Card Processing Time
Unfortunately, there is no set processing time to expect when you are transitioning your H-1B cap-exempt visa to a green card. However, most applicants should expect this processing time to take at least six months, with the potential to last as long as 18 months.
PERM labor certification alone can take between 6 to 18 months with an audit, however, waiting for your priority date after filing form I-140 is often the longest waiting period. The next part of this process that requires a wait is the processing time for your I-485, which is dependent on how busy the service center is that it is sent to.
There isn’t a way to speed up this process, but you can avoid lengthy delays by ensuring your application is correct and thorough. An immigration attorney can help ensure you and your sponsor have filed everything correctly, provided the right information, and provided enough documentation for approval. Failing to do any of this can result in delays if you need to correct certain forms or provide additional evidence.
Hire an Immigration Attorney Today
Do you want to change your USCIS H-1B cap-exempt visa to a green card? Contact us today at U.S. Immigration Law Counsel at 800-666-4996 to speak with an immigration attorney about your situation. We will deal with the government, so you don’t have to!
