Can an H-2B Visa Holder Get a Green Card?

Learn about the possibilities for becoming a permanent resident if you're in the U.S. on an H-2B work visa.

An H-2B visa allows foreign workers to come to the U.S. for a temporary period in order to work in a temporary position, typically for seasonal work. The most critical aspect of the H-2B visa is that it is for a temporary position only. That means that your position cannot be permanent; it must basically cease to exist after a temporary time period. A ski instructor for a U.S. ski resort, for example, would neatly fit the qualifications for this visa. (For a detailed explanation of H-2B visa eligibility, please see H-2B Work Visa Eligibility & Legal Issues.)

Although your H-2B visa allows you to work in the U.S., neither this visa itself nor the job that underlies it will allow you to gain U.S. permanent residence. However, it is possible to separately become eligible for and obtain a green card while you are in the U.S. with an H-2B visa. This article explains how.

I Have an H-2B Visa – How Can I Get a Green Card?

One of the most common ways foreign workers obtain green cards is by finding a U.S. employer to sponsor them for one. To do so, the employer must complete the PERM labor certification process (referred to as "PERM"). During the PERM process, the employer has to advertise for the foreign worker’s prospective job, and certify that no qualified U.S. applicants were qualified for or wanted the job.

U.S. immigration law states that employers can sponsor foreign nationals through the PERM process only if the prospective job is permanent. In contrast to the job you have for your H-2B visa -- which has to be temporary -- the PERM job has to be one that your employer will need you to fill for a permanent, indefinite period of time.

Because of this, many employers who sponsor H-2B workers for a green card do so with a position that is different from the position the H-2B worker is currently fulfilling. Let’s say, for example, you are a Swiss citizen, and a U.S. ski resort gets you an H-2B visa so that you can work as a ski instructor -- during winter season only, of course.

Your employer decides to sponsor you for a green card through the PERM process. Instead of sponsoring you for the position of ski instructor (which is temporary) your employer sponsors you for the position of resort manager (which is permanent).

(Please note that along with the requirement that the PERM position be permanent, the PERM process has several other strict rules and regulations.

Another way that you may become eligible for a U.S. green card is through a family-based petition. For more information on those processes, see Family-Based Immigration.

Maintaining H-2B Status While Awaiting a Green Card

If you have an H-2B visa and you want to obtain a green card, you will need to plan and time the process very carefully in order to ensure you are able to maintain your H-2B status during the processing of your green card application. Under the immigration regulations found at 8 CFR 214.2(h)(16)(ii), if an H-2B worker is the beneficiary of an approved PERM application, the worker will not be allowed to extend his or her H-2B status. You may encounter serious issues if you try to extend your H-2B status after your PERM application has been approved.

Additionally, you cannot enter the U.S. in H-2B status if you do not have the intent to leave the U.S. when your status expires. If a U.S. employer has filed a PERM application on your behalf, immigration officials will know that you do not intend to leave the United States. Because of this, if you travel and attempt to return, they can refuse to allow you into the country even if you have a valid H-2B visa.

Because of these very complex issues regarding H-2B status, it is highly recommended that you consult an immigration attorney before proceeding with a green card application.

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