We at North America Immigration Law Group usually receive hundreds of inquiries regarding employment-based immigration every week. Many potential clients have been asking whether they need to have an H-1B visa to receive a green card.  So we would like to clarify that an H-1B visa is not a prerequisite for any type of a green card. In fact, we have hundreds, if not thousands of clients who obtained their green cards while holding visas such as F-1, F-1 OPT, J-1, B1/B2 or TN.

A common misconception is that a person on a non-immigrant visa that requires non-immigrant intent must switch to a dual-intent visa before they can apply for a green card.  Dual-intent visas include H, O. L and P visas. However, this is not true.  While you may hold a visa that requires non-immigrant intent, you are not prohibited from changing your mind and seeking permanent residence at a later time.  For this reason, you are able to switch directly from a non-immigrant visa such as F  or J  to an immigrant visa such as EB-1A or EB-2 (NIW).  There may be certain factors that do not allow you to switch such as INA 212 (e) two year home residency requirement attached to certain J visa, but obtaining an H-1B visa would not alleviate these factors.

If you wish to switch from a visa that requires non-immigrant intent to an immigrant visa, you are said to have immigrant intent.  This is not an issue once you already have your non-immigrant visa and are in the United States, but you might encounter issues extending your non-immigrant visa or obtain a new visa stamp if you have immigrant intent.  For this reason, switching to a visa that allows for dual-intent can be beneficial.  If you were to switch to one of these visas, you would be able to extend your underlying non-immigrant visa and travel without having to worry that your green card process will impact that visa.

While changing to a dual-intent visa may alleviate some of the frustrations that accompany applying for a green card from different non-immigrant visa categories, the time and cost involved in switching visa statuses for the sole reason of applying for a green card often outweighs any benefits.  When a client comes to us in a status that requires non-immigrant intent, we are able to assist them with a personalized case strategy that takes into account their current status, past statuses, and their green card aspirations so that they may successfully obtain their green card.

If you are interested in starting your green application based on categories such as EB1-A Alien of Extraordinary Ability, EB-1B Outstanding Researcher/Professor,  or EB-2 National Interest Waiver, feel free to email us for free evaluation at law@wegreened.com.

Yesterday, the U.S. Department of Homeland Security announced that it will publish two proposed rules this week.  One of the rules proposes to extend employment authorization to the dependent spouses of certain H-1B workers.  In a press release dated May 6, 2014, DHS stated, “The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.”

The Notice of Proposed Rulemaking will soon be published in the Federal Register.  DHS will accept public comment on the proposed rules through the following website – www.regulations.gov.

Who Qualifies?

If the proposed rule goes into effect, you will qualify for employment authorization if:

• You are an H-4 dependent spouse (dependent children will not qualify); and
• The principal H-1B worker:

o   Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

o   Has been granted an extension of his/her authorized period of stay in the U.S. under the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”).

How the New Rule Benefits Our Clients

The new rule will benefit our EB-2 NIW clients on H-1B nonimmigrant status under two circumstances:

1. Clients on H-1B nonimmigrant status from India and China with an approved EB-2 NIW
   • Such clients are not eligible to file an I-485 because their I-140 priority date is not current.  However, they are able to extend their H-1B visa status in three-year increments until their priority date is current.  Under the new rule, they will also be able to apply for employment authorization for their H-4 dependent spouse such that their spouse will also be able to work in the U.S. while the family waits for the I-140 priority date to become current.
2. Clients on H-1B nonimmigrant status from India and China with an EB-2 NIW I-140 petition pending for more than 365 days at the time they reach the six-year limit for their H-1B
   • Such clients are eligible to extend their H-1B visa status in one-year increments beyond the six-year limit.  Under the new rule, they will also be able to apply for employment authorization for their H-4 dependent spouse such that their spouse will also be able to work in the U.S. while the I-140 petitioner waits for adjudication of his/her EB-2 NIW petition.

Please see here to contact our firm for more information.

You can read the full DHS press release here.

This year, the USCIS received roughly 172,500 H-1B petitions to fill 85,000 cap-subject slots for fiscal year (FY) 2015.  This means that those subject to the cap and not selected in the lottery will have to wait until April 1, 2015 to apply for an H-1B visa, hoping that their petition is selected in this lottery.  Over the past decade, it has become increasingly more difficult to obtain H-1B status.  The difficulty is largely due to this numerical limitation, or “cap,” imposed on new H-1B visas.  Regardless of how qualified an individual is, unless exempt, he or she will not have a chance to be granted H-1B status unless he or she is selected in the lottery, which fills 85,000 slots for petition processing (20,000 of which are for beneficiaries holding a US master’s degree or higher).   While an H-1B visa may have been most appealing, there are some alternative visas that may be available to those who were unable to be granted H-1B status.

O-1 Visa

O-1A visas are for aliens of extraordinary ability in science, education, business, or athletics.  O-1B visas are for aliens of extraordinary ability in the arts or extraordinary achievement in the motion picture of television industry.  These individuals are people who are recognized as being at the very top of their field and who are coming to the US to continue work in that field.   The visa is granted for up to three years initially and can be extended in one year increments until the business activity is completed.  Additionally, the O-1 visa holder may be joined by his or her spouse and children.  The spouse and children will be granted O-3 status and cannot work, but are able to attend school or college.  Another benefit to the O-1 visa is that it allows for dual-intent.  Therefore, one can extend or renew their O-1 status even after filing an I-140 or I-485.  To find out more information and learn whether O-1 status may be a great fit for you, please visit http://www.wegreened.com/O-Visa-Alien-Extraordinary-Ability.

L-1 Visa

L-1 visas may be a viable option for those individuals that have been working for multi-national companies.  For L-1 status, one must have worked for one continuous year in the last three years prior to entering the US as an executive, manager, or person with specialized knowledge.  The employer abroad must be a parent, subsidiary, affiliate, or branch of the US company.  This visa category also allows for dual-intent and allows for the visa holder’s spouse and children to join him or her.  The spouse of the L-1 visa holder may be granted L-2 status and is able to obtain work authorization and/or study, while the dependent children of the L-1 visa holder and admitted as L-2’s but are only allowed to study.  These visas are initially approved for up to 3 years and can be extended for a total stay of 7 years for executives and managers (L-1A) or 5 years for workers with specialized knowledge (L-1B).  L-1 visas also allow dual-intent, allowing aliens to extend or renew their L-1 status even after filing an I-140 or I-485.  To find out more information and learn whether L-1 status may be a great fit for you, please visit http://www.wegreened.com/L-Visa-Intracompany-Transferee-Visa.

Immigrant Visas

While it typically takes much longer to obtain an immigrant visa, it may be advantageous to start the process now.

EB-1A visas are first-preference, employment-based visas for aliens with extraordinary abilities in science, arts, education, business, or athletics.  These visas are current, so the foreign national does not need to wait for the priority date to become current before obtaining a green card.  Self-petition is also allowed, so one does not need an employer to sponsor the process and a job offer is not required.  For more information on EB-1A visas, please visit http://www.wegreened.com/EB1A

EB-1C visas are also first-preference, employment-based visas and are reserved for multi-national executives and managers.  Very similar to the L-1 visas, the beneficiary must have been employed abroad for one continuous year in the previous three by a multi-national company seeking to transfer the employee to the US.  Unlike the L-1 visa, however, EB-1C does not allow for transfer of specialized knowledge employees.  This category is also current, but self-petitioning is not allowed and a job offer is required. For more information on EB-1C visas, please visit http://www.wegreened.com/EB1C-Multinational-Executives-or-Managers

EB-2 (NIW) visas are popular amongst those qualified individuals whose employers are unwilling to sponsor the foreign national for permanent residency.  Sponsoring an EB-2 employee can be a burdensome and arduous process for employers, but EB-2 NIW waives the necessity to have a labor certification and a job offer which removes the need for an employee to be sponsored.  While the individual must still be qualified for the EB-2 category, they can obtain a National Interest Waiver if they can prove that their admission to the US would be in the “national interest”.  For more information on EB-2 (NIW) visas, please visit http://www.wegreened.com/niw/

Miscellaneous Options

In addition to the above-referenced visas, there remains a variety of other options for those that are unable to obtain H-1B status.  B-1 Business Visitors, R-1 Religious Workers, P-1 Athlete/Entertainer, and E-1/E-2 International Traders/Investors are just a few examples of alternative routes that are available.