Many employment-based visas allow a path for temporary visa holders to become lawful permanent residents by obtaining a green card. Even though H-2A and H-2B visas are temporary in nature, there are ways for these workers to obtain green cards. The H-2 visa evidences non-immigrant intent, and the green card evidences immigrant intent. If an H-2 worker evidences immigrant intent, it is unlikely their H-2 visa will be renewed. This process is quite nuanced and should be timed very carefully.
The Fundamental Difference Between H-2 Visas and Green Cards
Because H-2A and H-2B visas are temporary/seasonal, holders of these visas cannot show immigrant intent. This means that H-2 visa holders accept that their visas grant them only temporary lawful status in the U.S. Once the H-2A or H-2B visa expires, the worker must return to his or her home country until the visa is renewed.
If employers are motivated to keep H-2 employees on a permanent basis, they must offer them jobs that are also permanent. This can be somewhat difficult, as H-2 visas (H-2A visas, specifically) are used for agricultural companies and other entities needing seasonal work. If an employer identifies a permanent job through which they may sponsor an H-2 visa holder for a green card, the process may begin. This lengthy process is often referred to as the EB-3 Green Card Application.
The first task for employers is to start the PERM process with the Department of Labor (DOL). They are required to advertise for the position and then file a prevailing wage request for the required salary from the Department of Labor. Next, employers must file a Labor Certification. This certification attests, among other things, that no Americans were qualified for or interested in the position.
This process can take up to a year. If the DOL approves the employer’s PERM application, the employer may then file a Petitioner for immigrant Worker, which is the first stage of the Green card Process. Only when a visa is available can the employee file the final stage of the Green Card. This process can take up to two years and even longer for employees born in China and India.
Once the employer gets approval on the PERM application, the next step is to submit Form I-140 with the USCIS. On this document, the employer must show the ability to adequately pay the worker. After the I-140 form is approved, the worker is given a visa number and allowed to proceed. The process is finalized by filing an adjustment of status application (Form I-485, if the worker is already in the U.S.) or Consular processing if the worker is overseas.
Before Filing a PERM Application
Employers should confirm the amount of time a worker has on his or her H-2 visa before beginning the green card process. H-2 workers will not be able to renew their visas after the I-140 application has been filed. If there is not enough time on the H-2 visa to file the final stage of the green card (I-485), the worker must leave the U.S. before coming back as a lawful permanent resident.
In many situations, U.S. employers are permitted to get essential foreign talent for the purposes of furthering their enterprise. When you find an exceptional worker, you should consider sponsoring that worker for a green card. However, the process is lengthy and complicated. That’s why experience counts in immigration law, and Pollak PLLC has the experience. Contact our team to set up an initial consultation.