Securing a green card while on an H-2A or H-2B visa is a complex process—but for many temporary workers, it represents an important opportunity to create long-term stability in the United States. Although these visas are nonimmigrant by design, there are lawful strategies that can help certain workers pursue permanent residency. Doing so, however, requires careful planning, precise documentation, and legal guidance tailored to the challenges that come with transitioning from a temporary worker visa to a green card.
For H-2 workers considering a longer future in the U.S., understanding the immigration system's expectations and potential pathways is the first step. The second—and arguably most important—is working with the right legal team to guide you forward.
What Makes Pollak PLLC Different?
Navigating the immigration system as an H-2A or H-2B worker involves more than just paperwork—it requires legal strategy, experience, and insight. Choosing the right law firm can make a significant difference in the outcome of your case.
Decades of Experience in Employment-Based Immigration
Pollak PLLC brings over 27 years of exclusive experience in U.S. immigration law. From large employers to individual workers, the firm has helped clients successfully move through every stage of employment-based immigration.
Direct Access to Senior Counsel
At Pollak PLLC, your case receives direct oversight from Managing Attorney Karen-Lee Pollak. That means no delays, no hand-offs to junior staff, and no gaps in communication—just personalized, experienced representation from start to finish.
Strategic, Client-Focused Support
Every immigration journey is different. Pollak PLLC builds tailored strategies to match each client's goals, ensuring timing, documentation, and filings align with long-term objectives. The firm prioritizes clarity, responsiveness, and legal excellence at every step.
Understanding the Limitations of H-2A and H-2B Visas
Many workers begin their journey in the U.S. through an H-2 visa, which grants temporary legal status for specific types of employment. But these visas come with restrictions that can complicate the path to a green card.
Temporary by Nature
H-2A visas are issued for agricultural work, while H-2B visas cover non-agricultural, seasonal, or peak-load work. Both are designed to fill short-term labor needs, not long-term employment roles.
Nonimmigrant Intent Requirement
To qualify for an H-2 visa, applicants must show they plan to return to their home country after their authorized stay. This "nonimmigrant intent" is the opposite of the intent required to obtain a green card, which is inherently permanent. Any suggestion that a worker plans to stay in the U.S. permanently can jeopardize their current visa status.
Risks of Demonstrating Immigrant Intent
If U.S. Citizenship and Immigration Services (USCIS) or a consular officer believes an H-2 worker intends to remain permanently in the U.S. before the proper steps are taken, that worker could lose their visa or be denied future renewals. This makes the transition to a green card particularly sensitive and timing-dependent.
The Transition From Temporary Worker to Permanent Resident
Despite these challenges, H-2A and H-2B workers may still pursue a green card if a U.S. employer is willing to sponsor them for a permanent position. The most common route is through the EB-3 employment-based visa category.
What Is the EB-3 Category?
The EB-3 green card is for skilled workers, professionals, and other workers filling jobs that require less than two years of experience or training. H-2 workers often qualify under the "other workers" subcategory.
Permanent Job Offer Requirement
The employer must be able to offer the worker a full-time, permanent job—not seasonal or temporary employment. This job offer forms the foundation of the green card application and must meet specific Department of Labor (DOL) requirements.
Key Differences From H-2 Employment
Because H-2 visas are for temporary roles, the new job must be substantially different. For example, an H-2A worker who handled crop harvesting on a seasonal basis might be offered a year-round maintenance or supervisory role.
Step 1: PERM Labor Certification
For H-2A and H-2B workers seeking a green card, the PERM labor certification is often the most detailed and time-sensitive part of the process. The U.S. Department of Labor (DOL) requires this step to ensure that hiring a foreign worker will not negatively impact job opportunities or wages for U.S. workers.
Establishing a Fair Wage
The process begins with the employer submitting a prevailing wage request to the DOL. This wage must meet or exceed the average wage for similarly employed workers in the area of intended employment. The DOL uses this benchmark to prevent wage suppression and protect local labor standards.
Once the DOL issues a prevailing wage determination, that wage becomes the baseline for all further steps. Employers cannot offer less than this amount to the sponsored worker, and it must be a wage they can realistically pay.
Recruitment and Testing the Labor Market
The employer must then demonstrate that there are no qualified and available U.S. workers willing to take the job. This involves running advertisements in newspapers of general circulation, posting the position internally at the job site, and listing it with the state workforce agency. These recruitment steps must be done within a specific timeframe and thoroughly documented.
The purpose is not just to check boxes—it's to give U.S. workers a genuine opportunity to apply for the role. Any applicants must be assessed fairly, and the employer must provide valid reasons for disqualifying candidates.
Submitting the PERM Application
If no suitable U.S. applicants are found, the employer proceeds to submit ETA Form 9089. This application includes detailed information about the job role, the recruitment process, and the foreign worker's qualifications. Accuracy is critical. A mistake or omission at this stage can cause long delays or outright denial.
Timeline and Strategic Planning
PERM applications are processed on a first-come, first-served basis and often take between six months to over a year. In some cases, the DOL may conduct an audit, which adds more time and complexity.
Because H-2 visas are temporary, timing is everything. Starting the PERM process early in the visa term gives the worker a better chance of remaining in lawful status throughout the green card journey. Legal counsel plays a key role in ensuring the entire process is coordinated carefully.
Step 2: Filing Form I-140 With USCIS
After the Department of Labor certifies the PERM application, the sponsoring employer must take the next formal step: submitting Form I-140, the Immigrant Petition for Alien Worker. This filing confirms that the employer intends to hire the foreign national for a permanent role and that the candidate is qualified to perform the job.
Validating the Job Offer and the Worker's Eligibility
The I-140 petition requires the employer to establish that the job offer is genuine, full-time, and meets the criteria outlined in the approved PERM certification. At the same time, the worker's qualifications—such as education, experience, or training—must match those listed in the PERM application.
Even minor inconsistencies can trigger requests for additional evidence or outright denial. Pollak PLLC carefully reviews all supporting documents to ensure the petition aligns precisely with the original labor certification.
Demonstrating the Employer's Financial Capability
USCIS requires proof that the employer can pay the offered wage, both at the time of filing and moving forward. This is not a formality. If the employer cannot demonstrate this financial ability, the petition will be denied.
Acceptable documentation includes:
- Federal tax returns
- Annual reports
- Audited financial statements
In some cases, if the worker is already on payroll earning the offered wage, pay stubs may also support the petition.
Understanding the Visa Bulletin and Priority Dates
When USCIS approves the I-140, the worker is assigned a priority date—the date the PERM application was originally filed. However, approval alone does not allow the worker to proceed immediately to a green card.
Immigration categories are subject to annual numerical limits. When demand exceeds supply, backlogs form. Workers from countries with high volumes of immigration to the U.S., such as India, China, and Mexico, often face extended waiting periods.
Each month, the U.S. Department of State publishes a visa bulletin indicating which priority dates are currently eligible to move forward. Pollak PLLC monitors these bulletins closely and advises clients accordingly to ensure they are ready to act when a visa becomes available.
Planning Ahead While Waiting
While waiting for a current priority date, workers and employers must be mindful of immigration status and work authorization. The green card process is not static. It requires careful coordination to avoid lapses, status violations, or missed filing windows.
Step 3: Adjustment of Status or Consular Processing
Once Form I-140 is approved and a visa number becomes available, the final stage toward permanent residency begins. At this point, the applicant must choose between two routes—adjustment of status or consular processing—depending on their location and legal status.
Adjustment of Status for Workers Inside the U.S.
Workers who are physically present in the United States and have maintained lawful immigration status may be eligible to file Form I-485, the application to adjust status to permanent resident. This process allows the worker to remain in the country while their green card is being processed.
Form I-485 requires:
- Proof of lawful entry (such as a valid visa stamp or I-94 record)
- Biographic information and fingerprints
- A completed medical examination by a USCIS-approved physician
Applicants may also be eligible for work and travel authorization while the I-485 is pending. Pollak PLLC guides clients through every form and document to reduce delays and avoid errors that could trigger costly requests for evidence.
Consular Processing for Applicants Outside the U.S.
If the worker is outside the United States—or if they have fallen out of lawful status—they must complete the immigrant visa process through a U.S. consulate in their home country. This route is known as consular processing.
The process includes:
- Scheduling a visa interview at the U.S. embassy or consulate
- Submitting all required civil documents and police certificates
- Completing a medical exam abroad
While consular processing can be efficient, it also carries risks. Any past immigration violations may surface during the interview, potentially triggering bars to reentry. Strategic preparation is critical.
Timing Is Crucial
H-2A and H-2B visas do not provide flexibility for pursuing permanent residency. If a visa expires before the worker is eligible to file Form I-485, they may have no choice but to depart the U.S. and re-enter later with immigrant status.
To avoid gaps or complications, employers and workers must coordinate timelines closely. Missing the window to adjust status while still in the U.S. can result in additional processing time, added costs, and greater legal exposure.
Coordinating with Legal Counsel
This stage of the process is where timing, compliance, and documentation all converge. Pollak PLLC develops detailed action plans for every client, ensuring that the transition from temporary worker to green card holder is seamless, legally sound, and aligned with long-term goals.
Strategic Considerations and Common Pitfalls
Converting an H-2A or H-2B visa into a green card requires thoughtful planning. Timing, paperwork, and legal strategy must all work in tandem to avoid common issues.
Know When to Start
Beginning the green card process too late in an H-2 visa term can result in gaps in legal status. Employers should initiate the PERM process early—ideally within the first year of a multi-year visa term.
Avoiding Dual Intent Problems
Unlike H-1B and L-1 visas, H-2A and H-2B visas do not permit "dual intent." This means a worker cannot legally seek permanent residency while also asserting nonimmigrant intent. Working with an attorney ensures filings are sequenced to avoid conflicting legal positions.
Status Maintenance Is Essential
A worker must be in valid status when filing the I-485. Letting an H-2 visa expire before this stage can result in denial or require consular processing instead. Pollak PLLC carefully manages timing to maintain compliance throughout the process.
Addressing Complex Immigration Histories
If the worker has a prior overstay, unlawful presence, or misrepresentation, these factors must be addressed proactively. Pollak PLLC offers strategic solutions to mitigate these risks and protect the worker's future eligibility.
Schedule a Consultation With Pollak PLLC
If you're an H-2A or H-2B worker considering a green card—or an employer interested in sponsoring a trusted employee—now is the time to act. Delaying can limit options and complicate the process. With Pollak PLLC as your legal partner, you gain the benefit of decades of experience, responsive service, and a track record of successful outcomes.
Pollak PLLC provides full-service employment-based immigration guidance, from PERM filings to adjustment of status. Schedule a consultation today to discuss your goals, evaluate your options, and begin planning your path to permanent residency with confidence and clarity.
Pollak PLLC is an award-winning immigration law firm with offices in Dallas, Texas, and Fort Lauderdale, Florida. Contact us at info@pollakimmigration.com or call 214-307-5510 today to schedule a consultation to discuss your options. You can also see updated information on our Pollak PLLC Facebook page.
