Navigating the complex world of U.S. immigration can be daunting. Especially when considering a transition from an H-1B visa to an EB-3 immigrant visa. The H 1B is a non immigrant visa for specialty occupation foreign nationals. The EB-3 is an immigrant visa that provides a path to permanent residency for skilled workers, professionals, and other workers. This guide covers the full process, current 2026 requirements, filing fees, and strategies for a successful transition.
Understanding H-1B and EB-3 Visas
Before we delve into the transition process, it’s crucial to understand what H 1B and EB-3 visas are. These two visas serve different purposes and have distinct eligibility criteria.
What is an H-1B Visa?
The H 1B visa is a temporary work permit for foreign workers. It’s designed for occupations that require a high level of specialized knowledge. Specifically, H-1B requires theoretical and practical application of a body of highly specialized knowledge in a specialty occupation.
Typically, these occupations require a bachelor’s degree or higher. Examples include IT professionals, engineers, and scientists, among others.
What is an EB-3 Visa?
The EB-3 visa, or Employment-Based Third Preference visa, is for skilled workers, professionals, and other workers. It’s a pathway to permanent residency, also known as a green card.
Skilled workers are those with at least two years of job experience or training. Professionals must hold a U.S. bachelor’s degree or a foreign equivalent degree. Other workers are those who perform unskilled labor requiring less than two years of training or experience.
Benefits of Transitioning to EB-3
Transitioning from an H 1B to an EB-3 visa offers several benefits. The most significant is the opportunity to become a lawful permanent resident of the United States. This status comes with many advantages, including the freedom to live and work anywhere in the U.S.
Permanent residents also have more job security. They are not tied to a specific sponsoring employer and can change jobs without jeopardizing their status. This flexibility can lead to better career opportunities and increased earning potential.
Moreover, lawful permanent residents can sponsor their spouse and unmarried children under 21 for a Green Card. This allows family members to stay together in the U.S.
Permanent Residency and Beyond
Obtaining permanent residency is a significant milestone. It’s the penultimate step towards the ultimate goal for many immigrants: U.S. citizenship and immigration services-recognized status as a full citizen.
After five years of being a permanent resident, you can apply for U.S. citizenship. As a citizen, you can vote in federal elections and have access to a U.S. passport, among other benefits.
Eligibility Criteria for EB-3
The EB-3 visa category is designed for skilled workers, professionals, and other workers. Skilled workers are those whose jobs require a minimum of 2 years training or work experience. Professionals are those whose jobs require at least a U.S. bachelor’s degree or a foreign equivalent degree.
Other workers are those who perform unskilled labor requiring less than 2 years of training or experience. However, it’s important to note that this ‘other workers’ visa category is subject to annual numerical limits, which can result in longer waiting times. Unskilled workers should factor this into their planning.
The H-1B Sponsorship Process: What Employers and Workers Need to Know
The H 1B sponsorship process requires the employer to take the lead. Here is how it works in 2026, from the initial electronic registration process through petition filing and beyond.
Step 1: H-1B Electronic Registration (Cap-Subject Cases Only)
For cap-subject H 1B petitions, employers must first register during the annual registration period, which typically runs for two weeks in March. Each registration costs $215. For fiscal year 2027, USCIS introduced a new wage-weighted lottery, higher-wage positions receive more chances of selection. Lottery results are usually announced by the end of March. Selected registrations are then eligible to file full petitions for a requested start date of October 1, the start of the new fiscal year.
Step 2: File Form I-129 with USCIS
After selection, the sponsoring employer files Form I-129 (Petition for a nonimmigrant workers) with USCIS. The petition must include: Labor Condition Application (LCA) from the Department of Labor confirming the prevailing wage and working conditions; proof of the employee’s specialty occupation qualifications; evidence of higher education credentials (bachelor’s degree or higher); and all required fees. The petition can be filed up to 6 months before the requested start date.
Step 3: Prevailing Wage Determination
Before filing the LCA, the employer must obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC) at the Department of Labor. As of June 2026, the NPWC is processing PWD requests filed in March 2026, with an approximate processing time of 2.5 to 3 months. The PWD confirms the minimum wage paid to the H 1B worker, ensuring it does not adversely affect wages of U.S. workers in similar roles. The employer must pay at least the prevailing wage or the wage paid to similarly situated U.S. workers, whichever is higher.
H-1B Dual Intent and the Six-Year Limit
The H 1B visa allows dual intent, the worker can hold an H 1B while simultaneously pursuing immigrant petitions and a green card. The H 1B has a maximum of six years: an initial 3-year period, with one 3-year extension. Once the six-year cap is reached, the worker must generally leave the U.S. for at least one year before obtaining a new H 1B.
However, exceptions apply. Under AC-21, H 1B workers with an approved petition (I-140) or a perm labor certification that has been pending for at least 365 days can receive 3-year extensions beyond the maximum of six years. This is critical timing for workers on the EB-3 path, since perm labor certification alone now takes approximately 16 months. Employers must start the labor certification process early. After the H 1B expires or is no longer valid, there is a grace period of 60 days, known as the H-1B grace period during which the worker may remain in the U.S. to arrange departure or change status.
Employer Requirements and H-1B Filing Fees (2026)
Employers who sponsor H 1B workers must meet requirements set by both U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor. Employers must pay at least the prevailing wage for the role. Employers cannot pass filing fees on to the employee, nearly all USCIS petition fees are the employer’s responsibility.
| Fee | Large Employer (26+ FTE) | Small Employer (1-25 FTE) | Cap-Exempt Nonprofits |
| I-129 Base Filing Fee | $780 | $460 | $460 |
| ACWIA Training Fee | $1,500 | $750 | $0 (exempt) |
| Fraud Prevention Fee | $500 | $500 | $500 (not exempt) |
| Asylum Program Fee | $600 | $300 | $0 (exempt) |
| H-1B Registration (cap-subject) | $215 | $215 | N/A – no lottery |
| Public Law 114-113 Fee* | $4,000 | N/A | N/A |
| Premium Processing (optional) | $2,965 | $2,965 | $2,965 |
| $100K Proclamation Fee** | $100,000 | $100,000 | $100,000 |
| Total (large, no extras) | ~$3,380 | ~$2,010 | ~$960 |
* Public Law 114-113 Fee of $4,000 applies only if the employer has more than 50 U.S. employees AND more than 50% are on H 1B or L-1 status.
** The $100,000 Presidential Proclamation fee (effective September 21, 2025, sunset September 21, 2026) applies to new H 1B petitions for workers outside the U.S. who do not hold a current H 1B visa. Extensions, transfers, and change-of-status filings for workers already in the U.S. are exempt.
Other Employer Obligations
- File and maintain a Public Access File documenting LCA compliance and prevailing wage for each H 1B worker
- Notify employees of any intended employment location changes; a different worksite may require a new LCA
- Maintain employment of the H 1B worker at the prevailing wage throughout the petition period, layoff or salary reduction to below prevailing wage triggers a duty to withdraw the petition
- Cooperate with Department of Homeland Security (DHS) homeland security FDNS site visits, which have increased significantly since 2025
Cap vs. Cap-Exempt H-1B Employers
Cap-Subject Employers
Most for-profit companies are cap-subject. They must participate in the annual March registration period lottery and can only file petitions for a requested start date of October 1 of the new fiscal year. With FY 2026 registration seeing approximately 339,000 unique registrants, selection rates remain well below 25% for most categories.
Cap-Exempt Employers
The following employer types are exempt from the annual H 1B cap. They can file petitions at any time of year with no lottery:
- Institutions of higher education (universities and colleges)
- Nonprofit entities affiliated with institutions of higher education
- Nonprofit or governmental research organizations
- Certain national interest roles at qualifying government entities
- Workers transitioning from cap-exempt to a new cap-exempt employer also file without lottery
Cap-exempt employers also pay lower filing fees: they are exempt from the ACWIA Training Fee and the Asylum Program Fee, reducing the total government fee to approximately $960 for a new petition. This is a significant advantage for qualified workers seeking H 1B sponsorship at universities or research institutions.
Cap-Exempt Petitions and the EB-3 Path
Workers at cap-exempt institutions who later move to cap-subject employers may need to go through the lottery. Conversely, cap-subject H 1B workers can sometimes accept concurrent employment at a cap-exempt institution without going through the lottery for that position. This is worth planning if you are pursuing the EB-3 transition simultaneously, as it can protect employment authorization continuity while labor certification applications are pending.
The Transition Process: A Step-by-Step Guide
Step 1: PERM Labor Certification
The PERM labor certification is a crucial first step in the transition process. This certification is issued by the Department of Labor (DOL). It verifies that there are not sufficient U.S. workers who are able, willing, qualified workers and available to do the job.
Also, it confirms that hiring a foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employer must conduct a recruitment process to prove these points before filing the PERM application.
In 2026, the PERM labor certification process takes significantly longer than many applicants expect. The full timeline from start to approval is approximately:
- Prevailing wage determination (PWD): approximately 2.5 to 3 months (DOL processing as of June 2026)
- Recruitment phase: 2 to 3 months (mandatory advertising and 30-day waiting period)
- Form ETA-9089 review by DOL: approximately 16 months (501 days), the DOL is currently processing applications filed in April 2025 as of June 2026
- Total average PERM timeline: approximately 22 to 24 months from start to certification
Step 2: Filing the I-140 Petition
Once the PERM labor certification is approved, the next step is to file the I-140 petition. This petition is filed by the employer with U.S. Citizenship and Immigration Services (USCIS). The purpose of this immigrant petition is to demonstrate the employer’s ability to pay the offered wage.
The I-140 petition also establishes the basis for the immigrant visa classification and locks in the priority date. It’s important to note that the filing of the I-140 petition does not grant any immediate rights or benefits to the foreign nationals.
As of June 2026, USCIS takes approximately 3 months to process 80% of EB-3 I-140 petitions. Premium processing is available for the I-140 at a cost of $2,965, guaranteeing a response within 15 business days. Premium processing of the I-140 can be strategically important for H 1B workers approaching the six-year maximum of six years limit, as an approved I-140 enables 3-year AC-21 extensions.
Step 3: Priority Date and Visa Bulletin
After the I-140 petition is filed, you receive a priority date, the date the PERM labor certification application (Form ETA-9089) was filed with the DOL. This is your place in line for an immigrant visa number. You can track your priority date using the monthly Visa Bulletin published by the U.S. Department of State.
For most countries, the EB-3 visa category has a wait of approximately 2 years before the priority date becomes current. For foreign nationals born in India, the wait is currently over 12 years due to annual numerical limits and high demand. China also faces significant backlogs. Unskilled workers in the EB-3 ‘other workers’ visa category may face even longer waits due to numerical limitations.
Step 4: Adjustment of Status vs. Consular Processing
The final step in the transition process is either an Adjustment of Status (AOS) or Consular processing (CP). AOS is an option if the foreign national is already in the U.S. It involves filing an I-485 application to adjust the alien worker’s status to a permanent resident.
On the other hand, CP is an option if the foreign worker is outside the U.S. It involves applying for an immigrant visa at a U.S. embassy or consulate in the foreign worker’s home country, with an interview before consular officers.
As of June 2026, AOS (Form I-485) processing by USCIS takes approximately 8 to 14 months. Both processes require medical examinations by a USCIS-authorized physician. Applicants filing I-485 concurrently with I-131 (advance parole) and I-765 (employment authorization) can begin working for any employer while waiting.
Employer’s Role and Legal Responsibilities
The employer plays a significant role in the H 1B to EB-3 transition process. They are responsible for initiating the PERM labor certification and filing the I-140 petition. The employer must also demonstrate their ability to pay the offered prevailing wage to the foreign workers.
In addition, the employer has legal obligations to comply with all immigration laws and immigration services regulations. This includes maintaining accurate records and providing necessary supporting documents during the application process. Failure to meet these responsibilities can lead to legal consequences and may jeopardize the success of the visa transition.
Maintaining Legal Status During Transition
During the transition from H 1B to EB-3, it’s crucial to maintain legal status. This means you must continue to abide by the terms of your H 1B visa until your EB-3 immigrant visa is approved. For instance, you should continue working for your sponsoring employer and avoid any unauthorized employment violations.
It’s also important to keep track of your visa expiration dates. If your H 1B is set to expire before your EB-3 is approved, you may need to apply for an extension. Under AC-21, workers with an approved petition (I-140) or PERM labor certification pending for 365+ days can request 3-year H 1B extensions. A 60-day grace period applies once H 1B status ends. This will help ensure you maintain legal status throughout the transition process.
Alternatives to H-1B and EB-3: L-1, E-2, and EB-2 NIW
The H 1B and EB-3 are not the only paths to U.S. work authorization and permanent residency. Depending on your qualifications and your employer’s situation, the following alternatives may be faster, cheaper, or more suitable:
| L-1 Visa | For multinational company employees: no lottery, no labor certification, no annual cap. L-1A for executives and managers leads directly to EB-1C green card (no PERM required). L-1B for specialized knowledge workers. Requires 1 year of employment abroad with the same company. |
| E-2 Treaty Investor | For nationals of treaty countries investing in a U.S. business. No PERM, no lottery. Renewable indefinitely. Does not lead directly to a green card, but allows long-term U.S. work while pursuing other pathways. |
| EB-2 NIW | National Interest Waiver: no employer sponsor, no PERM labor certification required. For professionals with advanced degrees or exceptional ability whose work is in the national interest. Self-petition. Can be faster than EB-3 for India/China nationals with strong national interest cases. |
| EB-1A / EB-1B | Priority worker categories: no PERM labor certification required. EB-1A for extraordinary ability (self-petition). EB-1B for outstanding professors/researchers. Fastest employment-based green card for most nationalities, no visa backlog for most countries. |
| O-1 Visa | For individuals with extraordinary ability in their field. No annual cap, no lottery, no PERM. Filed at any time of year. Good short-term alternative while pursuing EB-1A or EB-2 NIW green card. |
Common Employer Mistakes in the H-1B to EB-3 Process
- Starting PERM too late: With PERM labor certification now taking approximately 22 to 24 months from start to certification, employers should begin the prevailing wage determination at least 3 years before the employee’s H 1B six-year limit. Many employers start too late and lose the ability to secure AC-21 extensions.
- Setting job requirements above the normal standard: USCIS and DOL scrutinize whether the minimum job duties and education requirements for a particular occupation are normal for that role. Adding requirements that exceed what the market expects (e.g., requiring 10 years’ experience for an entry-level role) triggers DOL audit flags and can cause denial of the PERM labor certification.
- Failing to document recruitment properly: The PERM recruitment phase has strict rules on advertising format, timing, and documentation. Incomplete records are a leading cause of DOL audits in labor certification applications.
- Not maintaining the Public Access File: Employers must keep a prevailing wage Public Access File (PAF) for each H 1B worker. Failure to maintain it is a common audit finding during FDNS site visits and DOL investigations.
- Paying below the prevailing wage: The sponsoring employer must pay at least the prevailing wage for the role and location. If the wage paid falls below this level, the H 1B petition can be revoked and the employer may face back-pay liability under immigration law.
- Passing filing fees to the employee: USCIS petition filing fees, including the ACWIA fee, fraud fee, and Asylum Program Fee, cannot legally be passed to the worker. Doing so violates immigration law and Department of Labor regulations.
- Not keeping the I-140 after an employee leaves: Even if a foreign national leaves the company, an approved I-140 petition remains valid, and the worker can retain their priority date if they find another sponsoring employer in the same or similar particular occupation within certain circumstances.
Strategies to Avoid Pitfalls
The transition from H 1B to EB-3 can be complex and challenging. However, there are strategies you can employ to avoid common pitfalls. One such strategy is to stay informed about immigration law policy changes and updates. This can help you anticipate potential issues and adjust your plans accordingly.
Another strategy is to seek professional advice. An experienced immigration services attorney can guide you through the process, help you understand your rights and responsibilities, and assist you in making informed decisions. They can also help you prepare for potential challenges and respond effectively if issues arise.
Frequently Asked Questions
How long does the H-1B to EB-3 transition take in 2026?
The complete timeline from starting PERM to receiving a green card typically ranges from 3.5 to 12+ years, depending on your country of birth. The breakdown in 2026 is: prevailing wage determination (2.5 to 3 months), recruitment phase (2 to 3 months), DOL review of Form ETA-9089 (approximately 16 months), I-140 processing by USCIS (approximately 3 months without premium processing, or 15 business days with it), and adjustment of status or consular processing (8 to 14 months).
Can I stay in the U.S. on H-1B while my EB-3 is pending?
Yes. The H 1B allows dual intent, so you can pursue an EB-3 immigrant visa while maintaining H 1B status. If your PERM labor certification has been pending for at least 365 days, or if your I-140 is approved petition, you qualify for 3-year AC-21 H 1B extensions beyond the maximum of six years. A 60-day grace period applies after H 1B status ends if no extension is filed.
Who pays the H-1B filing fees?
By law, the sponsoring employer is responsible for all USCIS petition filing fees — including the I-129 base fee, ACWIA training fee, fraud prevention fee, and Asylum Program Fee. Employers cannot require the H 1B worker to pay these fees, directly or indirectly. Premium processing ($2,965) may be paid by either party depending on who benefits from the faster timeline. The $100,000 Presidential Proclamation fee also falls on the employer for new petitions involving workers abroad.
Can I change jobs while my EB-3 is pending?
If your I-140 is approved and your I-485 (Adjustment of Status) has been pending for at least 180 days, the AC-21 portability rule allows you to change jobs or sponsoring employer without losing your priority date or your EB-3 immigrant petition, as long as your new job is in the same or a similar particular occupation. If the I-140 is approved but the I-485 has not yet been filed (because your priority date is not current), your approved I-140 remains valid and your priority date is preserved even if you leave the sponsoring employer, subject to certain circumstances.
What is the difference between EB-2 and EB-3?
EB-2 requires either an advanced degree (master’s or higher, or a bachelor’s degree plus 5 years of progressive work experience) or exceptional ability. EB-3 skilled workers require at least a bachelor’s degree or 2 years of training/experience. EB-3 other workers require less than 2 years. Both EB-2 and EB-3 generally require a PERM labor certification (except EB-2 NIW, which allows self-petition). EB-2 often has shorter priority date waits for some nationalities, and EB-2 NIW completely bypasses PERM. H 1B holders who gain a master’s degree or foreign equivalent degree may be able to upgrade from EB-3 to EB-2, preserving their earlier priority date.
Do I need a lawyer to transition from H-1B to EB-3?
There is no legal requirement to use an attorney, but the PERM labor certification and EB-3 visa application process is one of the most document-intensive and time-sensitive immigration law processes that exists. Errors in labor certification applications, including improper job duties descriptions, recruitment documentation gaps, or prevailing wage miscalculations, can result in denial, requiring the employer to restart the entire PERM labor certification process. Working with experienced immigration services attorneys at Global Immigration Partners significantly reduces this risk.
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