Staying Legal While on H-1B and Waiting for a Green Card

If you are from an overseas country and you are working in the U.S.A., it is particularly important to ensure you maintain the correct legal status throughout the whole period of your stay in the country. This is especially important if you are waiting for the processing of a green card. If you don’t follow the requirements, your stay will be considered illegal, and the U.S. Citizenship and Immigration Services (USCIS) has the right to stop your application for a green card.

How you maintain H-1B visa Status if you have not yet applied for a green card

Immigration procedures can take a long time to finally complete. This makes it particularly difficult for H-1B visa holders as the maximum length of stay should not exceed six years. People from some countries, typically China and India, experience longer delays in the processing of their applications for green cards in comparison to other countries. There is a reason for this delay and it is because “priority dates” set for Chinese and Indian citizens are “backlogged.”

Priority dates have particular significance in immigration matters. U.S. Congress only permits the issuing of limited employment green cards for each country annually. If the number of people applying for green cards exceeds those available, applicants have to wait for as long as it takes for a card to become available. When applicant numbers exceed green cards availability, this is called a “backlog.”

When a foreign national seeks an employment-initiated green card, a priority date is assigned based on when their employer put in the application for PERM. Once the date is live the application for a green card can commence. Checking to see if your priority date has become current you need to check the Department of State’s Visa Bulletin which is published once a month.

There are always backlogs, even if you hold an immigrant petition that has been approved you may have to wait before your application for a green card can be filed. Fortunately if you are an H-1B visa holder and you have exceeded the maximum six-years on that type of visa but you have an I-140 petition that has been approved you can extend the visa on the grounds that your priority date for applying for a green card is not yet current.

PERM applications and I-140 petitions sent in early

There is another way of extending your H-1B status over the six years maximum even if an approval hasn’t been granted for your immigrant petition. This can be done if your employer sent in your PERM application or I-140 Petition before the commencement of the sixth year of your H-1B status.

If you have filed the I-485 which is an application for adjustment of status which may take some time to process you are still what is called “in status” even if your H-1B visa status has expired. U.S. law gives you legal status as an adjustment applicant if you have filed an I-485.

Some of the ways of ensuring you are staying legally in the U.S.A. can get quite complex so an immigration attorney should be consulted before action is taken.

Return to "The H-1B Visa" to learn more.