I Was Not Selected in the H-1B Lottery, What can I do Next? An Employment Green Card Petition may be the Answer

Hoping to be selected in the H-1B lottery can be a nerve-wracking experience for both employees as well as employers, as there are usually never enough H-1B visas available to fulfill the demand for them. However, we should not forget, that employers have the option to apply for their employee’s or potential employee’s residency (Green Card) in addition to, or as an alternative to, applying for their H-1B Visa.

For several years now, most priority dates for Employment residency have been current (except for those for immigrants from India and China and certain special categories). This means that there is no waiting time to submit the I-485 (adjustment of status petition for individuals who are inside the U.S.), as it can be filed at the same time as the I-140 (petition for alien worker).

Even though the filing and processing time of the form ETA-9089 for the Perm/LCA (Labor Condition Application), which is generally the first part of the employment green card process and requires job recruiting is taking a little longer possibly due to the COVID pandemic (approximately 9-14 months), this may still be a good alternative if your H-1B visa registration is not selected in the lottery. The best part is that an employer can start the Green Card petition process at the same time, before or after starting an H-1b petition.

The procedure for an employer to sponsor an employee or prospective employee for a U.S. Green Card usually includes:

1. Registering the Company sponsor with the Department of Labor
2. Requesting the prevailing wage for the position being filled in the location where the employee will perform the work
3. Following the obligatory recruiting procedures to prove whether or not there are American workers available and qualified for the offered position
4. Filling an LCA (Labor Condition Application-Form ETA-9089) with the Department of Labor;
5. Filling an immigration visa petition for an alien worker (form I-140) with USCIS after the LCA is approved, to demonstrate that the employer or company has the ability to pay the designated prevailing wage, and that the employee has the skills required to do the job; and
6. Filing an I-485 (adjustment of status application) if the employee is inside the U.S. or a DS-260 (application for consular processing), if the employee is outside the U.S.

An advantage of the employment green card petition is that after the LCA is approved, the employee oftentimes may be eligible for employment authorization independent of any lawful visa status that they have.

It is important to note that generally in order to file an I-485 (adjustment of status) petition, the person must be in lawful immigrant status at the time of filling.

Also, an individual with a pending I-485 will generally receive work authorization and a travel and re-entry permit which allows them to work and travel while their Residency petition (Green Card) is pending.

In the following video, Boston Immigration Lawyer Desmond P. FitzGerald, explains what are the requirements to apply for an employment Green Card, who is eligible and how the process works.

You may also find answers to the most frequent questions about employment residency petitions on our website.

If you are interested in sponsoring an employee for U.S. permanent residency or you have an employer willing to sponsor you, call us now and schedule an appointment with one of our experienced Boston employment immigration lawyers at 617-303-2600 or fill out our online appointment request form.