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Requirement to be on H1b before Green Card

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How long do you have to be on an H-1B before applying for a green card? Hi, I'm Jim Hacking, immigration lawyer practicing law throughout the United States at our office here in St. Louis, Missouri. I got this question on one of our recent webinars from one of our participants, they were wondering how long do you have to stay on your H-1B before you can apply for a green card? This was actually an international student, I was talking with the students at Southeast Missouri State on a Zoom call. Usually I go down there to the school to talk to the international students each semester. But we were on Zoom this time and she wanted to know the answer to that question.

And I told her, "Well, that's a common misconception, but you don't have to be on an H-1B at all in order to apply for a green card." Now, the fact is that you can actually get a green card from overseas. So let's say that there's an employer here who wants to sponsor someone who's, let's say a scientist in Lebanon. They could file an H-1B application or a green card application, it's their choice. But they don't have to file the H-1B application.

So if they wanted to just get an employment based visa, they would go through the usual process through the perm process, they'd post the job, they'd have to certify that there aren't any Americans who can do the job. They'd have to make sure that they're paying the prevailing wage as set by the department of labor and they would have to do what's called a good faith recruitment effort to try to see if there are any Americans, US citizens, or lawful permanent residents who can do the job. If not, then they can proceed with USCIS with filing the I-140 petition for an alien worker. And the employee doesn't have to have been in the United States, doesn't have to have had an H-1B, that could all happen with USCIS and then overseas with the consulate. So that's a common misconception that you have to be on an H-1B.

Now, practically, most employers aren't going to want to go through all the hoops and all the headaches of sponsoring someone for a green card, unless they have already determined that the employee is worthwhile and is someone that they want to go to bat for. It takes a lot of time and money and headache to get an employment based green card. It's like the H-1B process, but on steroids, it's much more complicated, much more expensive and much more of a headache.

Now the one benefit of going the green card route instead of the H-1B is there's no lottery for green cards. There might be aa per country delay or cap, but there's no lottery. So if the person is qualified and the visa is available, then they can go ahead and get the benefit. But if you are really serious about this, the employer is probably going to want you to come to work on an H-1B first. So they can try you out, you can try them out and see if it's a good fit. And then the employer would go ahead with the green card application.

I'm having a conversation with one of our clients next week about what they need to know about the process so that they can make an informed decision as to whether or not they want to go to bat for the employee and to spend that money on the green card. So if you have questions about this, you can give us a call at (314) 961-8200, about the interplay between H-1Bs and green cards. You can also email us at [email protected]. You can find us on Instagram @hackinglawpracticellc. Be sure to join us in our Facebook group, which is called Immigrant Home, we'd love to have you in there, we've been putting in a lot of good information lately. And then finally, if you liked this video, please share it out on social and subscribe to our YouTube channel so that you get updates whenever we make videos, just like this one. Thanks a lot, have a great day.

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