The I-140 gateway: How temporary H-1B visa leads to permanent residency in US

New Delhi,UPDATED: Jan 28, 2025 11:49 IST

Thousands of Indians go to work in the US every year on temporary visas like H-1B but dream of getting permanent residency through Green Cards. The journey from an H-1B visa to permanent residency in the US hinges on one form -- the I-140 petition. Filing the I-140 petition puts people in the US Green Card queue, and converts the maximum six-year stay to an almost permanent stay in the US.

The I-140 petition involves an application for permanent residency as a foreign national working on a temporary visa. The H-1B visa itself is a temporary work visa that allows US employers to hire foreign workers, like Indians, in specialised fields, particularly in science and technology, which typically require at least a bachelor’s degree.

Despite being temporary in nature, the H-1B is a dual-intent visa, which means visa holders can legally pursue permanent residency (a US Green Card), while maintaining their temporary status.

While many remain worried about the H-1B visa scheme with now-President Donald Trump making immigration and employment key campaign issues, it has been a gateway to permanent residency for years for thousands of Indians in the US. But with Trump in the White House, the supremacist MAGA crowd has attacking Indians and the H-1B, which they project as snatching jobs of Americans.

PROCESS OF TRANSITIONING FROM H-1B TO GREEN CARD

However, transitioning from an H-1B visa to a US Green Card entails several steps. It begins with employer sponsorship, where the employer files an application on behalf of the employee who is a foreign national.

The first stage in this process is PERM or permanent labour certification.

Here, the employer has to prove to the US government that hiring a foreign worker will not negatively affect job opportunities or wages for American workers. This involves advertising the position locally and proving that no qualified US workers are available to fill the role.

Once the PERM labour certification is approved, the employer moves to file the I-140 Immigrant Petition for Alien Worker with US Citizenship and Immigration Services (USCIS).

This petition argues for the foreign worker’s eligibility for an employment-based Green Card, and tries to secure a priority date, which is important because it determines their position in the Green Card queue.

WHERE IS THE MAGIC IN I-140 PETITION FORM?

The importance of the I-140 lies in its ability to allow H-1B holders to extend their visa beyond the six-year maximum. The I-140 puts the H-1B visa holders in the Green Card process, which could take years due to backlogs.

Without an approved I-140, an H-1B visa holder reaching the end of their six-year limit would have to leave the US.

However, an approved I-140 changes everything.

For applicants from countries with a substantial Green Card backlog, such as India, the I-140 allows extensions of the H-1B visas ranging from one to three years, as per USCIS regulations. But for all practical purposes, the extension is till the visa holder gets a Green Card.

This ensures they can continue working and living in the US while awaiting their Green Card, relieving the immediate time pressure to return to their country of origin.

The final step in this process is filing for Adjustment of Status (Form I-485) or completing consular processing to officially get a US Green Card.

Applicants from countries with high backlogs, like India, face extraordinary delays, often waiting years or even decades for their priority date. But these petition forms help H-1B holders to maintain their legal status as they continue working while waiting for permanent residency.

PEOPLE SHARE THEIR I-140 AND H-1B EXPERIENCE ONLINE

One individual shared their experience on X (formerly Twitter): “I lived on a temporary visa for 12 years until I got my green card. H-1B is a dual-intent visa (it explicitly allows immigrant intent). The only way to stay on an H-1B beyond the six-year limit is to have an approved I-140 application for an employment-based green card. Most Indians will never get past this phase because of the numeric caps.”

The person added, “In those ‘temporary years,’ I worked at many notable tech companies and started a company while paying more in taxes than you ever have. Save us the dog whistle indignation because you don’t know what the f*** you’re talking about.”

Another person shared the uncertainty of the process.

“The path to employer-sponsored green cards through H-1B visas (EB2) is under a very serious threat. Reports suggest the Trump administration is reconsidering this method. In any case, Indians have to wait over 15–20 years to get approved, but they continued working using the I-140.”

TICKET TO PERMANENT RESIDENCY: H-1B AND THE I-140 FORM

The I-140 petition effectively transforms the temporary nature of an H-1B visa into a long-term residency in the US. Unless the petition is rejected or the H-1B visa holder isn't off employment, the applicant doesn't need to leave the US.

The US Congress allocates 65,000 H-1B visas annually for workers with a bachelor’s degree and an additional 20,000 for those with a master’s degree or higher, according to The New York Times.

These visa holders are from industries such as technology, education, healthcare, and manufacturing. Although there is no cap on how many workers can come from a single country, over two-thirds of H-1B visa holders are from India.

The programme also requires employers to pay H-1B workers at least the prevalent wage for their occupation and location or the average wage paid to American workers in similar positions. Despite this clear categorisation, a report by the Economic Policy Institute found that 60% of H-1B workers were paid below the local median wage for their occupational roles in 2019.

Though the focus is on H-1B, it is actually the I-140 petition that temporary visa holders use to convert their temporary stay into permanent residency, and contribute to the American society and economy.

Tune In