Can I apply for permanent residence while on an H-1B visa?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Typically, a temporary U.S. work visa requires you to prove that you have significant contacts in your native country and that you do not intend to apply for permanent residence in the United States. The H-1B work visa is an exception to this rule. The H-1B work visa is technically a temporary visa because it is considered for a limited purpose, however, the application process for an H-1B work visa allows you to designate permanent residence as a dual intent regarding the purpose of your entry.

Obtaining Permanent Residence in the U.S.

Under U.S. immigration law, once in the United States you can begin the process of obtaining a permanent residence status through your employment status. The process involves your U.S. employer applying on your behalf for you to obtain permanent residence through a labor certification. Your U.S. employer files Form I-140 with a copy of the labor certification for your position.

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Labor Certification Process and Permanent Residence Status

The labor certification process can be a lengthy process. Like with any other permanent residence application, you must remain in legal status while your application is pending. If the purpose of your H-1B work visa ends, then so does your legal status in the United States. If you stay beyond the authorized time frame, the illegal status could result in a denial of your application for permanent residency.

For example, if your employer is a struggling U.S. company and the company eventually goes out of business, the purpose of your H-1B work visa has ended. You must either leave the United States or immediately find another U.S. company to transfer your H-1B work visa to. If you cannot find another company, you may need to apply for a tourist visa to legally extend your time in the U.S. while your permanent residency application is pending. 

Getting Help

Labor certification, just like H-1B status, is discretionary with the U.S. Citizenship and Immigration Services (USCIS). That is, the right to apply for labor certification does not necessarily mean that it will be granted. To make sure that you have met all of the labor certification requirements, you may want to consult with an immigration law attorney. They can help work you through the labor certification process. If you are eligible on more than one basis, you can combine your applications.

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