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.

By , Attorney · George Mason University Law School

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; one that must basically cease to exist after a set time period. A ski instructor for a U.S. ski resort, for example, would neatly fit the qualifications for the H-2b visa.

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

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

One of the most common ways foreign workers obtain green cards is by finding a U.S. employer to offer them a job and then sponsor them for one. To do so, the employer must complete the PERM labor certification process (referred to as "PERM"). It's a complex process: the employer must 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 an 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). However, not every permanent job qualifies someone for a green card; your best chance is if you're highly skilled, as described in Best Types of Jobs to Get an Employment-Based Green Card.

Another way you might 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 U.S. green card, you will need to plan and time the process 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 C.F.R. 214.2(h)(16)(ii), an H-2B worker who is the beneficiary of an approved PERM application will not be allowed to extend H-2B status. You could 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, U.S. immigration officials will know that you do not intend to leave the United States. Because of this, if you travel out of the U.S. and then attempt to return, they can refuse to allow you into the country even if you have a valid H-2B visa.

Because of these 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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