If you are in the U.S. in H-1B status, you may be eligible to apply for an employment-based green card -- perhaps based on a job offer from your current employer, or from another employer. In a few rare cases, the worker does not need a job offer at all.
There are two basic steps in the employment-based green card process. First, your employer must file the I-140 Immigrant Petition for Alien Worker. This petition is filed with United States Citizenship and Immigration Services (USCIS).
There are five employment-based immigration categories, and on the I-140 petition, your employer must inform USCIS which category you are filing under.
For example, one category is the employment-based 1st preference category (EB-1). The EB-1 category then has three sub-categories: aliens of extraordinary ability, extraordinary researchers, and multinational executives. In order to file the I-140 petition under the EB-1/alien of extraordinary ability category, you must select this classification on page 1 of the Form I-140. (For further information regarding the different employment-based categories, please see Employment-Based Green Cards).
The vast majority of foreign workers need an offer of employment before they can file the I-140, and their prospective employer must also complete the labor certification (PERM) process, before filing the I-140 (further information on the PERM process can be found under Timeline of the U.S. Labor Certification Process).
Once USCIS approves your I-140 petition, you must then file the I-485 (green card) application in order to "adjust status." After USCIS reviews and approves your I-485, it will create your green card and mail it to you. In some cases, you may be able to file the I-140 and I-485 at the same time, which will speed up the process.
Unfortunately, there may be a significant delay between the date of your I-140 approval and the date you are eligible to file the I-485. This delay is a result of a backlog in "priority dates." Your priority date is either the date your I-140 petition was filed (if your I-140 was not based on an approved PERM) OR the date of filing your PERM application with the Department of Labor.
For example, let’s say on January 1, 2016, you filed your I-140 petition that was not based on an approved PERM. Your priority date is January 1, 2016. Conversely, let’s say your employer filed your PERM on August 1, 2016, and then filed your I-140 based on the approved PERM on December 1, 2016. Your priority date is August 1, 2016 (the date your PERM was filed).
Priority dates determine when you are eligible to apply for your green card. By law, Congress allots only a specific amount of green cards per immigration category and per country. When there are more green card applicants then there are available green cards, not every applicant is eligible to obtain a green card that year, and some applicants have to wait until a green card number is available to them. This is called retrogression.
This concept can be a little complicated, so let’s look at an example. You can find out what priority dates are ‘current’ (i.e. green cards are available to applicants with that priority date or earlier) by looking at the Department of State’s (DOS) Visa Bulletin, which the DOS puts out every month.
For the month of February 2016, the priority date for the employment-based second preference (EB-2) category for applicants from countries OTHER THAN China, India, Mexico, and the Philippines, said "Current." That means, whatever the person's priority date is, he or she can apply for a green card on that date -- there has been no retrogression.
Conversely, let’s say you are from Mexico. The priority date for Mexicans in the EB-2 category on February 2016 was February 22, 2010. Therefore, if your priority date is February 23, 2010 or later, your priority date would NOT be current as of February 2016, and you would not yet be eligible to file for your green card. Instead, you would have to wait until your priority date becomes current before you can file for your green card.
This backlog in priority dates is a very important concept, especially with regards to H-1B visa holders. There is a six-year maximum amount of time that foreign nationals can be in the U.S. in H-1B status. Once your six years are up, you must leave the U.S. for one year before you can reenter in H-1B status.
There are very important exceptions to this rule that allow H-1B visa holders to extend their status past six years, but only if the H-1B worker qualifies under very specific requirements. These exceptions are provided in the law "AC21." First, if the H-1B worker is the beneficiary of an approved I-140 and cannot file for a green card solely because of the backlog in priority dates, the H-1B worker is eligible to extend H-1B status past six years. For example, let’s say you will use up all six years of H-1B status on March 1, 2016, and you are a Mexican national with an approved I-140 in the EB-2 category. Your priority date is December 1, 2015.
Per the above-cited February, 2016 Visa Bulletin, your priority date is NOT current, and that is why you cannot file for your green card. You will be eligible to extend your H-1B status, even though you have reached the six-year maximum.
Second, if you filed a PERM or I-140 Petition prior to the beginning of your sixth year in H-1B status, and that petition is still pending, you are also eligible to extend your H-1B status past six years. For example, let’s say you will begin your sixth (and ordinarily, final) year of H-1B status on October 1, 2016. As long as your employer filed a PERM or I-140 PRIOR to October 1, 2016, and the application is still pending, you will be eligible to extend your H-1B status past the sixth year.
Please note that you may also be eligible to file for a family-based green card. However, the protections of AC21 do not cover you if you are the beneficiary of a family-based immigrant petition. AC21 only allows H-1B visa holders to extend their status if they are the beneficiaries of employment-based petitions.