For H-1B visa holders aiming to secure permanent residency in the United States, maintaining legal status during the employment-based (EB) green card process is critical. This process can be complex and time-consuming, often taking years due to visa backlogs. This article provides a comprehensive guide to staying in legal status in 2025, offering practical tips and up-to-date data.
Understanding the EB Green Card Process
The EB green card process is designed for foreign workers with extraordinary abilities, advanced degrees, or exceptional skills. There are five main preference categories (EB-1 to EB-5), but for most H-1B holders, the following are relevant:
- EB-2: For professionals with advanced degrees or individuals with exceptional abilities.
- EB-3: For skilled workers, professionals, and other workers.
The process involves several stages:
- Labor Certification (PERM): The employer must obtain certification from the U.S. Department of Labor (DOL) to prove no qualified U.S. workers are available for the position.
- Immigrant Petition (I-140): The employer files Form I-140 with the U.S. Citizenship and Immigration Services (USCIS) to classify the worker under the appropriate EB category.
- Priority Date: The filing date of the I-140 (or PERM) becomes the priority date, determining your place in the visa queue.
- Adjustment of Status (I-485): Once a visa number becomes available (per the Visa Bulletin), you can file Form I-485 to adjust your status to permanent resident.
Due to high demand, particularly from citizens of India and China, there are significant backlogs, meaning the wait between filing I-140 and being able to file I-485 can span years.
Maintaining H-1B Status While Awaiting a Green Card
While awaiting your green card, maintaining valid H-1B status is essential. Here are key strategies and recommendations:
- H-1B Visa Extension: Typically, H-1B status is extended in three-year increments up to a maximum of six years. However, exceptions allow for extensions beyond this limit:
- Six-Year Limit Exception: If you have an approved I-140 petition and are waiting for a visa number due to retrogression, you may be eligible for unlimited H-1B extensions. This is particularly relevant for those in categories with long backlogs, such as EB-2 for India or China.
- Concurrent Filing: In some cases, you can file Forms I-140 and I-485 simultaneously, allowing you to work while awaiting a green card decision, even if your H-1B is nearing expiration.
- Timely Filing: Submit H-1B extension applications well before your current status expires to avoid gaps that could complicate your green card process.
- Avoiding Status Gaps: Maintaining continuous legal status is critical. If your H-1B expires and your green card application is not yet approved, you may need to leave the U.S. or risk losing status.
- Working with an Attorney: Collaborating with an immigration attorney can help ensure all paperwork is correctly filed and deadlines are met.
According to USCIS data, in fiscal year 2025, most available EB visas were utilized, except for approximately 7,700 EB-5 visas, underscoring the importance of timely filing to secure available visa numbers.
Current Backlogs and Wait Times
As of May 2025, the U.S. Department of State Visa Bulletin indicates significant backlogs in EB categories, particularly for applicants from India and China. Below is a table summarizing the Final Action Dates for key EB categories:
Table: Final Action Dates for EB Categories (May 2025)
| Category | All Chargeability Areas Except Those Listed | China | India | Mexico | Philippines |
|---|---|---|---|---|---|
| EB-1 | C | 08NOV22 | 15FEB22 | C | C |
| EB-2 | 22JUN23 | 01OCT20 | 01JAN13 | 22JUN23 | 22JUN23 |
| EB-3 (Prof/Qual) | 01JAN23 | 01NOV20 | 15APR13 | 01JAN23 | 01JAN23 |
| EB-3 Other Workers | 22MAY21 | 01APR17 | 15APR13 | 22MAY21 | 22MAY21 |
| EB-4 | U | U | U | U | U |
| EB-5 | C | 22JAN14 | 01MAY19 | C | C |
Notes: C = Current (no wait), U = Unauthorized (visas unavailable)
For example, an EB-2 applicant from India with a priority date of January 1, 2013, or earlier can now file Form I-485 for adjustment of status, while those with later dates must wait until their priority date becomes current.
Chart: Approximate Years from Cutoff Date for Selected EB Categories
This chart underscores that applicants from India in EB-2 and EB-3 categories have waited over 12 years since their priority dates became current, highlighting the severe impact of country-specific visa limits.
Navigating the Process: Key Strategies
While awaiting your priority date to become current, consider these strategies to manage your immigration status effectively:
- National Interest Waiver (NIW): For EB-2 applicants, qualifying for NIW allows self-petitioning without labor certification, potentially reducing processing time.
- Job Portability: After I-140 approval, you can change jobs in the same or similar field without losing your place in line, provided the new employer files a new I-140 or you utilize portability provisions.
- Premium Processing: For certain forms, such as I-140, you can request premium processing to expedite review.
- Regular Visa Bulletin Monitoring: Check monthly updates on the U.S. Department of State website to know when to file I-485.
Common Pitfalls to Avoid
Navigating the EB green card process can be challenging. Here are common mistakes to avoid:
- Missing Deadlines: Failing to file H-1B extensions or other required forms on time can lead to status gaps.
- Ignoring Visa Bulletin Updates: Inconsistent monitoring of the Visa Bulletin can result in missed opportunities to file I-485 when your priority date becomes current.
- Not Understanding Exceptions: Misunderstanding exceptions to the six-year H-1B limit can cause unnecessary stress or even lead to deportation.
- Incomplete Documentation: Errors or missing documents when filing forms like I-140 or I-485 can lead to delays or denials.
Conclusion
Maintaining legal status during the EB green card process requires careful planning and adherence to immigration regulations. By understanding the process stages, monitoring the Visa Bulletin, and leveraging available extensions and exceptions, H-1B holders can successfully navigate this complex journey. Stay informed, act proactively, and consult an immigration attorney when needed to ensure a smooth transition to permanent residency in the United States.
Sources
- Title: U.S. Citizenship and Immigration Services (USCIS)
URL: https://www.uscis.gov
Description: Official government website providing information on immigration processes, including EB green cards and H-1B visas. - Title: U.S. Department of State Visa Bulletin for May 2025
URL: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2025/visa-bulletin-for-may-2025.html
Description: Monthly bulletin detailing visa availability for immigrant visa applicants, including EB category cut-off dates.
