Our company has an employee that is currently working for us under an H-1B visa. Can we get her a green card?

Immigration law is complex and has many requirements that must be satisfied before a business can ask for the employee to become a permanent resident or get a green card.

Since the employee already has an H-1B visa and is currently working in the country, she has already showed that she is “admissible” to the United States. Assuming she has not broken any laws she would probably still be admissible if she were approved for permanent residency.

However, there are many laws, rules, and categories regarding permanent residency for an employee that are different than the rules for getting the H-1B. Before the employee can even get to the point where the government determines her admissibility, many employees or prospective employees for permanent residency need to go through a labor certification process to qualify the job position with the US Department of Labor before the process goes over to US Citizenship and Immigration Services where they decide if the business is qualified to employ the foreign national as an employee.

Not every kind of employee would be subject to the labor certification process, but most employees would have to go through it. The categories used for permanent residency, with or without labor certification, also have quotas attached to them. Some of the categories have more applicants than the quota allows so even though an employee might qualify for permanent residency, there may be a wait of months or years before the quota becomes current so that an employee can obtain final permanent residency approval.

Fortunately, many H-1B visa holders can extend their visa or status many times while the company waits for the processes and quotas to finish and become current.

An important consideration for any business is employee turnover. Once an employee receives permanent residency he or she is not prohibited from leaving the sponsoring company in the future.

So the answer to the question is complex and more discussion about the facts of the situation would be needed before an educated opinion could be given. Many times a company can sponsor an H-1B visa holder for permanent residency, but sometimes the law, processes, and wait times will discourage or deter a company from starting or finishing the process.

Since the process is complex and requires an investment of time and money, it is recommended that companies consult an immigration lawyer before deciding how to proceed.

If you have any questions regarding immigration, please feel free to call me, immigration attorney Shawn Mesa at (813) 679-5780.

Disclaimer: This information is provided as a public service and not intended to establish an attorney-client relationship. Any reliance on this information is taken at your own risk.

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