The H1-B visa for foreign skilled workers is an employment-based non-immigrant temporary visa (with dual intent) that lets foreign workers come to the United States via a signed Form I-140 petition. This route of employment in the United States also creates an eligibility status for such workers to adjust their status (meaning they will be able to apply for a green card), either in the United States once they are working, or immediately upon having a visa available.

One of the common misconceptions about the employment-based visa, and indeed it is apparent across a number of online blogs, is that an employment-based visa equals a green card. This is simply not the case. Visas are entirely separate stamps and documents than green cards. This post is dedicated to better understanding how the H1-B will lead to a green card, and also will provide some insights as to new immigration policy that gets rid of country caps to the employment-based category, which could impact the amount of green cards being issued in future fiscal years.

Here is the basic way that adjusting one's status works under the current rules of H1-B visas:

U.S. immigration law provides aliens with a variety of ways to become lawful permanent residents through employment in the United States. These employment-based (EB) “preference immigrant” categories currently include, but are not limited to:

  • First Preference (EB-1) priority workers—Aliens with extraordinary ability in the sciences, arts, education, business, or athletics. Additionally, this category includes professors and higher educational researchers, as well as certain business managers and executives
  • Second preference (EB-2) Aliens who are members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers)

After receiving your visa and passing through CBP at a U.S. port of entry and starting your job, you should be eligible to apply for a green card via an adjustment of status. The key component for H1-B visa holders is to make sure that the I-140 is in their possession and that they have proof while applying for a green card that the new job description and pay are consistent with their visa forms. Most H1-B recipients will apply for a green card within the first year of working in the United States, as significant processing time is normal for I-485 applications.

New Immigration Rules and Potential Changes

This is how the system currently works. There are 140,000 employment-based visas that are issued every year, and this number is the cap. One of the shortcomings of this policy, however, is that this number is not really responsive to the state of the labor market or demands from domestic employers. As such, the incoming administration has pledged to focus their attention on the fluctuating demands and potentially eliminating the cap altogether.

This could ultimately present new challenges to the USCIS in terms of processing I-485 applications if more adjustment of statuses than expected are filed next year. It could also lead to more scrutiny on the I-485 application with regard to:

  • Petitions signed, such as the I-140 petition filed by employers sponsoring a foreign national.
  • Derivative family accompanying the principal applicant to the U.S.
  • Labor certification procedures

Overall, although there are many paths to receiving a green card, when one policy changes such as the employment-based category, this could also lead to new amendments by the USCIS to deal with new inflows of applications. It will be difficult to assess if the incoming Administration is prepared to deal with both aspects.

Keywords
I-485 Adjustment of Status Employment-Based Visa