H-1B to Green Card Transition: How Does U.S. Tax Residency Change?

Unlike many other visas, the H-1B visa is a dual-intent visa, meaning you can pursue lawful permanent residency while maintaining H-1B status, subject to meeting the applicable immigration requirements. The H-1B visa is an employment-based visa issued for a temporary period, generally up to 6 years, with 3 initial years and an additional 3-year extension, subject to applicable exceptions, allowing you to work in the U.S. in specialized fields. Conversely, the green card offers lawful permanent residency in the U.S., meaning you can live and work in the country with much greater flexibility. This is one of the main reasons why the H-1B-to-green-card transition happens.

The transition may be through two pathways: employment-based sponsorship and family-based sponsorship. Since the H-1B visa is intended for employment, many H-1B holders use the employment-based pathway, which is further classified into EB-1, EB-2, and EB-3 categories. Although it's not mandatory, they can also use the family-based green card process if they independently qualify. When applying for the transition, you may encounter three stages in a PERM-based employer-sponsored process. Keep reading to learn more about the process of transitioning from H-1B to a green card.

What is an H-1B Visa?

The H-1B visa is a temporary work visa that allows individuals to work in the U.S. in specialized fields for a sponsoring employer. This can include working in IT, healthcare, finance, and engineering sectors. It is typically issued for up to 3 years initially and can generally be extended for a total of up to 6 years, subject to applicable exceptions. Certain H-1B petitions are also exempt from the annual cap.

What is the Green Card?

A green card offers permanent lawful residency in the U.S., allowing the holder to live and work with much greater flexibility in the country. After generally five years of holding a green card, you may apply to become a U.S. citizen if you meet the naturalization requirements. Certain lawful permanent residents married to and living with a U.S. citizen may qualify under the three-year rule. Unlike an H-1B visa, a green card offers you the right to work permanently and plan for long-term settlement in the U.S. As a result, the H-1B-to-green-card transition occurs.

Let's understand a few more reasons behind this transition.

Why Does the H-1B to Green Card Transition Happen?

The common reasons behind the H-1B to green card transition are as follows:

• H-1B status is temporary and is generally limited to a total of six years, with three initial years plus an additional three-year extension, subject to applicable exceptions. Conversely, a green card grants permanent residency, allowing you to live and work with much greater flexibility.
• Under H-1B status, you generally work in a specialized field under the employer covered by the applicable H-1B petition. However, qualifying H-1B workers may change employers under portability rules. With a green card, you can generally change jobs, work for different employers, or even start a business.
• H-1B visas are subject to an annual cap in certain circumstances, and the normal H-1B period is generally limited to six years, subject to exceptions. A green card provides lawful permanent resident status, which generally allows you to remain in the U.S. indefinitely as long as you maintain that status and comply with applicable immigration requirements.
• You cannot directly apply for citizenship while holding an H-1B visa. Instead, you generally must become a lawful permanent resident first and then meet the applicable naturalization requirements. After obtaining the green card, you can apply for citizenship after the required period.

These are a few reasons people often transition from H-1B status to a green card. Further, you may transition through two main routes: employment-based sponsorship or family-based sponsorship. Since many H-1B visa holders already have U.S. employer sponsorship, they may pursue the employment-based green card route. Let's learn a little more about this.

What are the Pathways For H-1B Visa to Green Card?

The following are three common employment-based immigrant classifications used by H-1B workers under USCIS (U.S. Citizenship and Immigration Services):

• EB-1: It is for priority workers, including individuals with extraordinary ability (EB-1A), outstanding professors and researchers (EB-1B), and certain multinational executives or managers (EB-1C). EB-1A applicants may generally self-petition without an employer sponsor.
• EB-2: It generally covers members of the professions holding advanced degrees or persons of exceptional ability. This includes the National Interest Waiver (NIW) self-petition option, which may allow a qualifying applicant to seek a green card without employer sponsorship and without the normal PERM labor certification requirement.
• EB-3: It covers skilled workers whose jobs require at least two years of training or experience, professionals whose jobs require at least a bachelor's degree or foreign equivalent, and certain other workers whose jobs require less than two years of training or experience.

When you get married to a U.S. citizen, you may qualify for family-based sponsorship, subject to the applicable eligibility and filing requirements. Spouses of U.S. citizens are generally treated as immediate relatives and are not subject to the annual numerical limits that apply to family-preference categories. However, processing times can vary by case. Since the H-1B visa is mainly a work-based status, we'll next look at the employment-based green card process.

What are the Steps for the H-1B to Green Card Transition?

These are the three common stages you may come across when transitioning from H-1B status to a green card through a PERM-based employer-sponsored EB-2 or EB-3 route:

Step 1: PERM Labor Certification

PERM, or Program Electronic Review Management, is a labor certification process administered by the Department of Labor (DOL). For many EB-2 and EB-3 employer-sponsored cases, the employer must complete the PERM process before filing the immigrant petition with USCIS.

It serves to establish that there are not sufficient U.S. workers who are able, willing, qualified, and available for the job opportunity and that employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

• Prevailing Wages: Your employer requests a prevailing wage determination from the DOL.
• Market Test: The employer conducts the required recruitment activities to test the U.S. labor market and determine whether there are qualified U.S. workers available for the position.
• Application: Lastly, the employer files ETA Form 9089 PERM with the DOL.

Step 2: Form I-140 Immigrant Petition

Once PERM is approved, the employer files Form I-140 with USCIS for the immigrant petition for an alien worker. The priority date generally determines your place in the immigrant visa queue and is used to determine when an immigrant visa number may become available.

The form establishes that:

• You are eligible for the applicable EB-2 or EB-3 category, and
• The employer meets the applicable requirements, including the ability to pay the offered wage where required.

Also, in certain circumstances, a qualifying PERM labor certification or employment-based immigrant petition can allow an H-1B worker to extend H-1B status beyond the usual 6-year limit under AC21 rules. An approved Form I-140 can also be relevant where an immigrant visa number is not available, subject to the applicable requirements.

Step 3: Adjustment of Status (Form I-485)

This is the last step where an eligible applicant in the U.S. applies to adjust status to lawful permanent resident. However, you can proceed with this step only when an immigrant visa is available under the applicable Visa Bulletin rules and you meet the other eligibility requirements. Depending on the month and USCIS instructions, you may be able to file Form I-485 based on the applicable Dates for Filing chart, while final approval generally requires a visa number to be available.

In this step, if you are eligible to adjust status in the U.S., you need to file Form I-485 to adjust your status without leaving the country for consular processing. Also, when the application is still pending, you may be able to apply for an employment authorization document (EAD) and advance parole, subject to the applicable requirements.

To Conclude

Although the H-1B-to-green-card transition is optional, many H-1B holders pursue permanent residency to obtain greater long-term flexibility and avoid relying indefinitely on temporary H-1B status. The green card offers more flexibility and permanent residency, provides a more stable long-term immigration status, and allows you to apply for citizenship after meeting the applicable naturalization requirements. The process of shifting from an H-1B visa to a green card can be complex and may take significant time, particularly when visa-number backlogs apply. Missing any important steps or providing incorrect information can result in delays or denial of your application.

Given the complexities, it's advisable to connect with a professional at Savetaxs. At Savetaxs, we have an entire team of experts who can help you understand the process and ensure you stay compliant with all the rules. Connect with us today, as we are actively working 24/7 across all time zones.