Navigating the H-2B Journey to a Green Card
The U.S. immigration system often faces criticism for being complex and challenging. Political figures from all sides point to various issues such as border control, backlogs, and humanitarian concerns, not to mention the millions of undocumented individuals living and working in the country.
Despite the challenges, the legal immigration system does facilitate success stories. According to U.S. government data, over a million individuals annually achieve lawful permanent residence, or Green Card status. Interestingly, over 25% of these Green Cards are granted through employer sponsorship.
In recent years, seasonal employers utilizing the H-2B nonimmigrant visa program have shown an increasing interest in Green Card sponsorship. While the H-2B program effectively addresses seasonal or peak labor needs, its temporary nature sometimes leaves employers in need of a more permanent workforce solution.
Moreover, the H-2B program is capped annually, leading to a competitive lottery system due to the high demand for these visas. Although additional visas are often made available, the process remains unpredictable and challenging. Consequently, many H-2B employers are opting for Green Card sponsorship to mitigate the risks associated with the H-2B cap and secure long-term labor.
H-2B workers can pursue Green Card sponsorship through the EB-3 preference category, which includes skilled workers, professionals, and other workers without college degrees. However, transitioning from an H-2B visa to a Green Card presents its own set of challenges.
The primary hurdle is the annual visa cap and the uncertainty surrounding the workers' ability to secure H-2B status each year. This uncertainty, combined with government processing times, complicates the Green Card strategy. For workers to adjust their status within the U.S., immigrant visas must be available while they are in the country—a situation that is not always guaranteed. Due to immigrant visa limitations, the EB-3 category is oversubscribed, meaning there is no set timeline for when your worker's visa date will be current and eligible for processing. If this timing does not align, workers must pursue their Green Card through consular processing, which involves waiting for an immigrant visa at a U.S. consulate or embassy. This waiting period can extend to several, during which time it becomes difficult for workers to return to the U.S. under H-2B status.
The challenge arises because the H-2B visa does not allow for "dual intent," meaning the worker must intend to leave the U.S. after their contract ends. Workers seeking permanent residence are not eligible for H-2B status. However, this issue typically only surfaces during the final steps of the Green Card process when the employer files an Immigrant Petition on the worker's behalf. For the first 2-2.5 years of the Green Card process, workers usually face no issues returning to the U.S. under H-2B status.
If you are considering the Green Card option for your H-2B workers, please contact us today. Professional assistance can help your workers transition to Green Card status while maintaining the integrity of your H-2B program.
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