Maintaining Legal H-1B Status While Waiting for a Green Card

Maintaining legal status in the U.S. becomes especially important when waiting to apply for permanent residency (or waiting to receive your green card after you have applied).

As a foreign national working in the U.S., it is very important that you maintain legal status the entire time you are in the country. Maintaining legal status becomes especially important when you are waiting to apply for a green card (or are waiting to receive your green card after you have applied). If you are in the U.S. without any status, you are considered to be here illegally, and U.S. Citizenship and Immigration Services (USCIS) may deny your green card application for that reason alone.

This article explains how an H-1B visa holder can maintain legal status while waiting for a green card and outlines the possible consequences of not maintaining status. We give an overview of two common scenarios:

  1. where the H-1B visa holder has not applied for the green card because of the priority date backlog, and
  2. where the H-1B visa holder has already applied for the green card and the application is pending with USCIS.

I Have Not Applied for My Green Card Yet – How Can I Maintain H-1B Status?

Immigration processes can take anywhere from several months to several years to complete. This drawn-out time frame can pose significant problems for H-1B holders, because you can only hold H-1B status for a maximum of six years - with some exceptions. Foreign nationals from certain countries such as India and China, typically experience even lengthier delays in their green card processing when compared to nationals from other countries. The reason for this country-specific delay is because the “priority dates” for Indian and Chinese citizens are severely “backlogged.”

The priority date is a very important immigration concept. The U.S. Congress allows only a limited number of employment-based green cards to be given out per year per country. If more people apply for green cards than there are a number of green cards available, some people will have to wait to receive their green cards until one is available to them. (When the number of applicants exceeds the number of green cards available, this is referred to as a green card “backlog.”)

In order to determine who gets a green card at what time, foreign nationals seeking employment-based green cards are assigned priority dates, based on the date their employer first filed the PERM application. When their priority date is current, they can go forward with the application process to receive a green card.

You can see whether your priority date is current by checking the Visa Bulletin, published monthly by the Department of State. For example, let’s say you are an Indian citizen. Your employer filed your PERM application for an employment based second-preference green card (EB-2) on January 1, 2011. If you look to the Visa Bulletin for April 2012, you see that the current priority date for Indians in the EB-2 category is May 1, 2010. Since your priority date is AFTER May 1, 2010, your priority date is not current and you cannot apply for your green card yet. Other people in your category have waited around two years, so you might have to wait a similar amount of time.

Because of these backlogs, you may have an approved immigrant petition but not be able to file your green card application (I-485 Application) for some time. U.S. immigration law allows you to extend your H-1B visa past the six-year maximum if you are the beneficiary of an approved I-140 petition and the only reason you have not filed your green card application is because your priority date is not current.

There is also a way to extend your H-1B status past six years even if your immigrant petition is not yet approved. You can do so if your employer filed your I-140 Petition or PERM application before you started your sixth year of H-1B status. For example, let’s say you began H-1B status on April 1, 2009. Your sixth year of H-1B status would begin on April 1, 2016. Therefore, in order to extend your status past six years, your employer must have filed the labor certification application or I-140 petition sometime before April 1, 2014.

These calculations and time frame can be very complicated and hold crucial implications for your immigration status. It is highly recommended that you consult an immigration attorney if you are in H-1B status and want to begin (or have already begun) the green card process.

I Have Already Applied for My Green Card– How Can I Maintain My H-1B Status?

You may have already applied for your green card by filing the I-485 (adjustment of status ) application. Even green card applications may take months or years to receive approval (or denial) from USCIS. By applying for your green card, you are considered to be “in status” even if your underlying nonimmigrant status expires. Applying for your green card grants a status of its own. For example, let’s say your H-1B is valid until April 1, 2012. You applied for your green card on January 1, 2012. You did not extend your H-1B. Once your H-1B expires, you still have legal status to remain in the country even though you no longer have H-1B status. By filing the I-485 application, U.S. law grants you lawful status as an adjustment applicant.

However, merely applying for your green card does NOT give you work or travel authorization. There are two ways that you can obtain these. The first is to keep extending your H-1B, per the guidelines above. The H-1B visa allows you to work and travel in the U.S. and is unaffected by your green card application.

Or, instead of extending your H-1B, when you file your green card application you can also file for work authorization (Form I-765, referred to as an employment authorization document or EAD) and travel authorization (Form I-131, referred to as Advance Parole or AP). These documents will allow you to work in and travel outside of the U.S. while your I-485 is pending.

However, it is important to remember that your EAD, AP, and lawful status as an adjustment applicant cease if and when USCIS denies your I-485 application. Therefore, it is almost always a better idea to maintain your H-1B status while you await USCIS’s adjudication of your I-485 application.

What Happens If I Do Not Maintain My Status?

As explained above, filing the I-485 gives you status in the U.S. (but you cannot work or travel unless you are also maintaining H-1B status or have work authorization and advance parole). However, if you have not yet filed your I-485 and you let your H-1B status expire, USCIS will likely deny the I-485 once it is filed. You cannot adjust status unless you are already in status. If you remain in the U.S. after your H-1B has expired, you have “overstayed” your period of authorized stay and are now in the U.S. illegally. Additionally, if you are in the U.S. as an adjustment applicant and USCIS denies your I-485, you are also considered out of status and in the U.S. illegally.

When you fall out of status, you begin to accrue “unlawful presence” in the United States. Accruing unlawful presence leads to VERY serious consequences. If you accrue more than 180 days but less than one year of unlawful presence, when you next leave the U.S. you will not be allowed to reenter the U.S. for a period of three years. Even more seriously, if you accrue a year or more of unlawful presence, when you next leave the U.S. you will be barred from reentering the country for a period of ten years. For details on this issue, see "Three-Year and Ten-Year Time Bars for Unlawful U.S. Presence."

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