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Transferring from H1b Status to a Green Card

December 11, 2013 By Sarah 2 Comments

Normally, H-1B status may not be extended beyond a total of six years. In certain situations, however, an H-1B holder with a pending employment-based green card case may be granted an extension of H-1B status allowing her to live and work in the U.S. until her green card is granted.

It is not always necessary that a person currently be in H-1B status to take advantage of the extension provisions. In some cases, prior H-1B status holders who are no longer in H-1B status but who have a pending PERM case or an approved I-140 may be able to move back into H-1B status under one of the extension provisions.

In some cases, an extension will not be granted until 365 days after the initiation of the petition for permanent residence. If you are in H-1B status and hope to obtain a green card through your employment, it is important to start planning well before the end of your fifth year in H-1B status to ensure you are able to remain in the U.S. continuously until a final decision is made on your petition.

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Filed Under: Employment-Based Green Card, H1b Tagged With: Employment-Based Green Card, H1b Visa

Sarah

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Reader Interactions

Comments

  1. pandey says

    December 4, 2015 at 10:36 pm

    L1B-H1B conversion with employer A. Completed 4.8yrs on L1B which expired in Sep2014 and then got first H1B from employer A(not stamped only petition) in Oct2014. Continued job with employer A and now 1.3yrs spent on H1B till Dec2015. During job on H1B I also filed Green Card in july 2015 but Labor not adjudicated yet so leaving for india. My question is if I leave my employerA in india and join a new employerB… can i still come back on my current cap H1B through my new employerB once I complete one year of cooling period. And will my Green Card remain continue as well. Please advise. Thx

    Reply
    • Sarah says

      December 29, 2015 at 11:27 am

      Hi Pandey,

      This is a complicated situation and you should definitely thoroughly discuss all of the details with an attorney before proceeding, but I can give you some general information that may be helpful:

      Your green card application is independent of your H1b status. An employer filing a green card application is applying to hire you when you get the green card–you do not have to work for the employer during the application process. So you can work for employers B, C, and D or whoever you want while your green card application is pending, as long employer A is still proceeding with the green card application. If employer A does continue with the green card petition, at a certain point you will be eligible for H1b extensions beyond the 6 year maximum. These extensions can be used with any employer, not just the one who is sponsoring your green card. So after you travel, you may be able to come back and work for employer B based on your old H1b, based on this special extension provision. If employer A is not longer pursuing your green card, however, you may no longer be eligible for the extensions, in which case you would need to go through the cap again before being able to work in H1b status again, since between your L and H time you have exhausted the 6 year maximum.

      A complicated situation–make sure you discuss all of the details with an attorney before taking action.

      Best,
      Sarah

      Reply

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