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).

As a foreign national working in the U.S., it is 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 having applied for one). 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. It's a particular concern since the start of the COVID-19 pandemic, when job loss can lead to loss of 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 Haven't Yet Applied for My Green Card: 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 hold H-1B status for a maximum of only six years, with a few exceptions.

Foreign nationals from certain countries, such as India and China, typically experience even lengthier delays in green card processing compared to nationals of 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 an important immigration concept. The U.S. Congress allows only a limited number of employment-based green cards to be given out per year and per country (based upon the country of birth, not country of citizenship). If more people apply for green cards than there are green cards numbers available, some people will have to wait 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 or I-140 petition. 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 were born in India. 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 May 2020 (Final Action Dates, which is the one that USCIS requires using for that month), you see that the cutoff date for India in the EB-2 category is June 2, 2009. Since your priority date is AFTER June 2, 2009, your priority date is not current and you cannot apply for your green card yet. Other people in your category have waited several years, so you might have to wait a similar amount of time.

Because of these backlogs, you might have an approved immigrant petition but not be able to file your green card application (on Form I-485) 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 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 April 1, 2015. Therefore, in order to extend your status past six years, your employer must, in this example, have filed the labor certification application or I-140 petition sometime before April 1, 2014.

In addition to sorting out the above, temporary furloughs, layoffs, and other changes in employment arising from the COVID-19 pandemic of 2020 present more challenges. First, keep in mind that the green card process contemplates future employment, which means your employer intends to offer you a job, or continue to employ you, when you get your green card. If you now have H-1B status, but your employer is forced to shut down due to a local stay-at-home order or simply from reduced business, your green card process is not necessarily in jeopardy. If your employer can see a way forward to still have a job for you once the pandemic is under control and operations have resumed, that will be reassuring.

In the meantime, however, if you will be furloughed, or if your job location, hours, or pay will change, you and your employer need to take a close look at your H-1B petition to determine the next steps. In many cases, H-1B employers still need to pay wages to furloughed H-1B workers. In other job change situations, the employer might need to submit an amended petition to USCIS.

If you lose your job with no possibility of returning to your employer now or when you get your green card, you still might be able to keep your priority date for the green card process. You first will need to find another H-1B employer, however, and have that employer sponsor you for both and H-1B petition and the green card process.

The calculations and time frame can be complicated and hold crucial implications for your immigration status. The COVID-19 pandemic introduced another layer of complexity. 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 might have already applied for your green card by filing the I-485 (adjustment of status ) application. Even green card applications can 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 July 1, 2020. You applied for your green card on January 1, 2020. 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 status, 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. If you're going to use Advance Parole for travel, be sure USCIS approves your I-131 application before you leave the United States; if you leave the U.S. while the I-131 is pending, you may abandon your I-485 application.

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 Don't Maintain Lawful Status in the U.S.?

As explained, filing the I-485 authorizes you to remain 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 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 without an underlying nonimmigrant status such as H-1B, and USCIS denies your I-485, you are 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 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 for a period of ten years. For details on this issue, see Consequences of Overstaying on a Temporary U.S. Visa.

Keep in mind too that there's a maximum 60-day grace period in which to find a new job and have another employer submit an H-1B petition for you to allow you to remain in the United States. Therefore, if you lose your job, perhaps because of a COVID-19-related shutdown or layoff, you have up to two months to find a new H-1B employer. If you don't find a job within the first month, you likely will want to consult an immigration attorney to determine what options you might have to remain in the U.S. and how you can preserve the green card that's in process.

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