If you are currently in the United States on an H-1B visa and are offered a permanent position by your employer or another employer, you may apply for an “Adjustment of Status” based on an immigrant based visa so long as all of the requirements are met. See Employment Based Immigrant Visas (EB Visas).

The H-1B visa is considered a “dual intent” visa by the United States government. Essentially, this means that a foreign national may have the intent to work temporarily in the United States while simultaneously intending in the long term to immigrate to the United States. This allows foreign nationals currently working in the United States on an H-1B visa to apply for an “Adjustment of Status” from a nonimmigrant visa to an immigrant visa. Most nonimmigrant visa categories are not “dual intent” visas and thus those persons cannot apply for permanent residency while in the United States.

H-1B Visa Requirements:

• The U.S. employer files a Labor Condition Certification (LCA);
• The employer attests that the foreign worker is paid the prevailing wage (the actual wage level paid by the employer to all individuals with similar experience and qualifications for the specific employment in question or the prevailing wage in the geographical area of intended employment based on the best information available, whichever is greater);
• The employer attests that the foreign worker’s working conditions will not adversely affect the working conditions of other workers in similar situations, that there are no strikes or work stoppages as a result of a labor dispute, and that the current employees were given notice of the employer’s intent to hire a foreign worker;
• The U.S. employer petitions for the foreign national’s entry under an H-1B visa, and provides all required supporting documentation;
• The position is for a specialty occupation requiring the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s degree in the specific specialty (or the education and experience equivalent to a bachelor’s or higher degree);

A maximum of 65,000 H-1B visas are issued by the United States each year, and they are issued for as long as three years. In addition, the H-1B visa may be extended another three years for a maximum of six years under H-1B status. Because H-1B petitions cannot be filed any earlier than six months prior to the employment start date and the United States fiscal year starts October 1 of each year, H-1B applications (Form I-129) could not be filed until April 1, 2009, for the 2010 fiscal year (October 1, 2009, to September 30, 2010). The demand for H-1B visas is high and with an annual maximum of only 65,000, the United States Citizenship & Immigration Services (USCIS) only accepts applications for the first five days in April of each year (a very narrow window). If less than 65,000 applications are received, the USCIS will continue to accept applications. However, in April of 2008 (for the 2009 fiscal year), over a 160,000 H-1B applications were filed in the first five days. It should be expected that this high demand will continue in coming years.