"When Should I Start My Greencard Process"

[Attorney_25]

For the next one week we will discuss the timing of starting the green card process, for anyone in any status or even outside the US.  You will be able to find relevant articles on www.Murthy.com by searching on terms like "green card process timing."

 

Please post your relevant questions here.

 

Remember you can sign up for the Murthy Bulletin containing topical articles at www.Murthy.com in the subscription box on the right side of each page. See http://www.murthy.co...rvices/hire-us/ for information on scheduling a more personalized consultation with one of our experienced immigration attorneys.

 

RULES FOR TOPIC OF THE WEEK THREADS:

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2. The attorney will answer only those questions that relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate section of the forum.
3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.
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[SunFlower123]

Hi,

 

I got my Bachelor's Degree in Dec 2011. I have worked for more than 6 years in the Indian version of my present company. I am working in US version of the same company from May 2012 in L-1B visa.

 

Am I eligible to apply in EB-2 category? What is the right timr to do that?

 

Thnx,

 

SunFlower123

[Attorney_25]

SunFlower, I am going to first consider the more important issue related to timing: If you are born in India, priority dates are so far backlogged for EB-3 AND EB-2 that if there is any issue as to your position or yourself being qualified for EB-2, you are better off timing-wise to go for EB-3, which will do two things for you: 1) get you an approved I-140 which will allow H-1B extensions for an indefinite term into the future rather than being limited to 6 years H-1B; and 2) establish your priority date.

 

Since it would be many years, probably at least 5, possibly many more years unless the immigration laws are changed, for your priority date to become current in either EB-3 OR EB-2, your biggest priority is having the labor certification and I-140 approved so that you can continue to extend your H-1B status until you are able to receive an approved "green card." It's not worth trying for EB-2 if there is a big risk of either your labor certification or I-140 being denied. (Note though that if the first I-140 is revoked for any reason it cannot be used to obtain additional H-1B extensions.)

 

Once you have the EB-3 I-140 approved, you can keep that priority date to a future EB-2 process (requiring new labor certification and I-140). (Technical term: "Priority date retention." Some people like to say "porting the priority date," but that term does not have a legal definition.) The only reason you would lose that priority date is if the USCIS revoked the I-140 "for cause," meaning, for example where the employer/petitioner or employee/beneficiary committed some type of fraud. Having the employer withdraw/revoke the first I-140 would not cause you to lose your priority date.

 

That being said, it is possible you could qualify for EB-2 under two possible routes: 1) If the Indian company is a separate (but related) company from the US company, experience at the Indian company normally can be used to qualify for the EB-2 position; 2) Even if they are the same company, experience with the sponsoring employer can be used to qualify for the EB-2 position IF the past experience is significantly different, i.e. at least 50% different in job duties, than the offered EB-2 position.

[Attorney_25]

Since people are viewing but not posting, I will add more information before having this thread locked:

 

Most people will need to go through the PERM labor certification process. Process timing varies, but DOL has taken up to 8 months at times for initial processing. (At other times, they may process as quickly as a few weeks, but don't count on it.) In addition, a large percentage of PERM cases are audited. Some are random audits, and some are targeted audits. DOL changes their target issues from time to time. In short, plan on your labor certification process possibly taking a year. If you receive a denial, it could be double that, to be conservative. It's important to hire a qualified attorney who is experienced in the process, as even minor mistakes can lead to denial.

 

Once you receive the PERM approval, the I-140 usually can be filed in premium processing if you need quick approval. Generally this will result in approval within 2 weeks of filing. Occasionally an RFE will be issued, which will take additional time.

 

Once you have an I-140 approval, you can use that for 3-year H-1B extensions beyond the initial 6 years of H-1B, which may relieve some of your timing anxiety. Even if you can't get to I-140 approval because your PERM has been audited or denied, you can get one-year extensions starting from the 365th day after the PERM filing. The green-card process will need to be continuing to get that one year extension, so either the PERM must still be pending, or denied and appealed, or approved and I-140 in process. The I-140 must be filed within 180 days of PERM approval, as otherwise it is expired, so if you're still within 180 days of PERM approval you still should be able to get that one year extension even if the I-140 is not yet filed, but you may receive some difficulty from USCIS on that. They may delay to see if the I-140 gets filed or not.

 

If you've been in L-1 status, you will need to change status to H-1B before completing six years, because only H-1B status can be continued based on your green card process, and if you complete six years in L-1 status you will not be able to change to H-1B status because time in L-1 status counts against H-1B status time. 

 

The conclusion of all this is that the green card process is best to be started no later than 2 years prior to the end of six years in H-1B status, to ensure the ability to remain in the US past the end of the 6^th year.

 

PERM processing times are listed at icert.doleta.gov. Please search www.Murthy.com on “PERM processing” for explanation of various timelines involved. USCIS processing times are listed at https://egov.uscis.gov/cris/processTimesDisplayInit.do. Please be aware that processing times do fluctuate.

 

Priority date cut-off dates, and some explanation of same, are posted at http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. Please search www.Murthy.com on “visa bulletin” and/or “priority date” for additional explanation.

 

If you or your spouse are born in a country that does not have a backlog of visa availability for the specific employment or family based category under which you are applying, designated as “C” for “current” in the Visa Bulletin, you may not need to be as concerned about ability to extend your nonimmigrant status, focusing instead on processing times, as you should be able to receive an employment authorization document (EAD) within 3 months of the concurrent filing of an I-130 or I-140 with your I-485, or to receive an immigrant visa at a consulate outside the US, granting you permanent residence as soon as you enter the US.

 

If you are in the US in a nonimmigrant status other than H-1B or L-1, then starting the green card process may effect your ability to extend or travel in your current status. Therefore, extensions and travel should be strategized in relation to your green card process, e.g. traveling or extending before a petition is filed for you. In addition, in such nonimmigrant statuses it may negatively affect your green card process to file an I-485 within a couple months of entering the US or filing an extension application. USCIS may consider you to have entered the US improperly or even to have committed fraud.

 

It is a very wise idea to strategize your particular timing situation with a qualified immigration attorney.

[Pamy]

Hi Attorney...

 

I have 10 years of work experience with the same company. I would be travelling to USA in L1-B visa (I previously had a H1 visa which got expired in Sep 2013) in another 2-3 months. My employer has promised to initiate my Green Card in EB2 category in June 2015.

 

In your first response, you were advising for a EB3 category instead of EB2. Can you please explain, why EB3 was preferred over EB2? My understanding is you will get your EAD and then GC quicker if its EB2.Correct me if I am wrong.

 

What is Priority date and how we can determine, when it would become current?

 

I am totally new to this GC process and your response will be of immense help to me.

Thanks in Advance!!!

[Attorney_25]

Pamy,

 

Please read at least a couple of these links to understand priority dates:

http://www.murthy.com/2011/10/17/how-long-will-it-take-to-get-a-green-card/

http://www.murthy.com/2012/05/23/priority-dates-how-do-they-work/

http://www.murthy.com/2010/09/03/immigration-basics-the-priority-date-and-its-importance/

http://www.murthy.com/visa-bulletin/

http://www.murthy.com/2012/07/06/cutoff-date-expectations-and-explanations-eb2-retrogression/

http://www.murthy.com/2013/03/01/aila-insights-into-visa-bulletin-cutoff-dates/

 

The point of filing EB-3 is to establish a priority date in the situation where your EB-2 case might not be strong. If you are from a visa number "backlogged" country like India, you may have several years in which you can then "upgrade" to EB-2 once you have a stronger EB-2 case. (An EB-2 India case started now will likely take at least 5 years to become current, and possibly much longer. So you could start as EB-3 and after 2 or 3 years have another labor certification and I-140 filed in the EB-2 category, using the priority date established by the prior EB-3 case.)

 

Also may be helpful:

http://www.murthy.com/2011/07/01/considerations-for-eb3-to-eb2-upgrade/

http://www.murthy.com/2012/05/11/eb2-upgrades-priority-date-retention-and-online-degrees/

[Attorney_25]

Final note: You do not have to be working for an employer in order for that employer to start your green card process. At least the first two stages, labor certification and I-140, can be done while you are in any status, no status, or outside the US. However, the intent to form the employment relationship must be there, and USCIS may ask you to prove that relationship before issuing your green card. Also, as noted above, if you are in certain statuses that don't allow "dual intent," you need to consider how the process will affect your status.

[satishvinayaka]

Hi,

 

I have completed my 5 years on L1b and retuned to India in May 2015. My employer also filed H1b and my application is selected in random selection process. Assuming my H1b application is approved and stamped, the earliest i can travel is on October 2015.

 

My manager is willing to initiate the GC process.

 

1) I work for Indian company. So can GC process be initiated from India? 

2) Since i can only stay for 1 year on H1b in US, can i use recapture time to make sure my perm or I140 is pending for more than 1 year, if my employer files for GC in June or July 2015? This way i can extend my H1b visa without actually coming back?

3) is there any limitation on time that i can spend outside of US to avail recapture time?

4) what are the other options that i could have to so that i dont need to come back after 1 year and i dont want to go through H1b Cap again.

[jillusri]

Hello,

 

I am a first Green Card Applicant. My husband works for a different employer and has his I-140 approved. I am wondering, as a first time applicant may I request for the same priority date as that of my husbands when my PERM is filed with USCIS?

 

Thank you!

[Attorney_20]

Hello,

 

I am a first Green Card Applicant. My husband works for a different employer and has his I-140 approved. I am wondering, as a first time applicant may I request for the same priority date as that of my husbands when my PERM is filed with USCIS?

 

Thank you!

If you file a dependent I-485 application based on your husband's green card case, it will be based on his priority date.  But your principal green card case will only be based on your priority date(s).

[akn1983]

Hello Sir/Madam,

 

I came to US on H1-B visa in Oct 2011 and here in US since then (about 3.5 years now). I changed my employer in Aug 2013 and currently working with this new employer, which is a very large IT firm. I have a total of around 11 years of experience till date. Soon after I joined this company, my GC process was initiated and the based on my experience and education qualifications, the preference category was determined as EB-2 by my attorneys. As per the process for PERM, my attorneys first applied for Job Classification with DOL around April 2014. However, about 3 months after applying for the Job Code, my attorneys mentioned that they got the job code which they mentioned cannot be utilized. They reapplied again for the job classification and every time (about 5 times till now), they mentioned that they always got a job classification which was not usable. I am getting worried as I am losing precious time due to this issue as there is no progress since last 1.5 years and we have not even crossed the first step of PERM process. I have around 2 years left now in my H1-B and I have never heard of this issue in any of the forums or in my friends circle!

 

May I please know if this is normal? What could be going wrong? My attorneys are advising to revisit the job summary which means filing under EB3 instead of EB2 but also mention that this will also not guarantee that we will get a usable job classification. 

 

My employer/manager has assured they are willing to do whatever it takes from their end to resolve this issue but I keep hitting the wall as I have no idea on what is going wrong!

 

Please advice as this is causing a lot of stress.

 

Thanks a lot in advance!

 

Regards

AKN

[Attorney_20]

Hello Sir/Madam,

 

I came to US on H1-B visa in Oct 2011 and here in US since then (about 3.5 years now). I changed my employer in Aug 2013 and currently working with this new employer, which is a very large IT firm. I have a total of around 11 years of experience till date. Soon after I joined this company, my GC process was initiated and the based on my experience and education qualifications, the preference category was determined as EB-2 by my attorneys. As per the process for PERM, my attorneys first applied for Job Classification with DOL around April 2014. However, about 3 months after applying for the Job Code, my attorneys mentioned that they got the job code which they mentioned cannot be utilized. They reapplied again for the job classification and every time (about 5 times till now), they mentioned that they always got a job classification which was not usable. I am getting worried as I am losing precious time due to this issue as there is no progress since last 1.5 years and we have not even crossed the first step of PERM process. I have around 2 years left now in my H1-B and I have never heard of this issue in any of the forums or in my friends circle!

 

May I please know if this is normal? What could be going wrong? My attorneys are advising to revisit the job summary which means filing under EB3 instead of EB2 but also mention that this will also not guarantee that we will get a usable job classification. 

 

My employer/manager has assured they are willing to do whatever it takes from their end to resolve this issue but I keep hitting the wall as I have no idea on what is going wrong!

 

Please advice as this is causing a lot of stress.

 

Thanks a lot in advance!

 

Regards

AKN

There may be a prevailing wage issue with the company.  The DOL determines the Standard Occupational Classification (SOC) code based on the job description and wage level based on the minimum education and experience required.

[indianpro]

Here is a scenario where employee works as a Software Architect in a Company.

Software Architect is usually a very highly specialized job requiring tons of experience and degree and should be a EB2 eligible position.

 

Education and Work Experience of Employee :

3 year Bachelor degree in Computer Science in India + 15 years experience in software development and architecture.

 

Since the employee already works as Software Architect and is performing the Job duties but the tricky part is Job falls under Eb2 and Employee would not qualify for Eb2 since he/she does not have a 4 year BS equivalent degree.

 

Also, EB Category is determined by Job Duties so company can not just change requirements and say Software Architect job can be applied as EB3 because the employee has EB3 level qualifications. How is this type of case handled ?