Transition from H1B to obtaining LC for Green Card

[Sandy Adam]

Hello there, 

I am currently on a H1B visa as a faculty member at a university. I was hired 6 months before completing my phd (ABD) but my hiring was conditional upon completion of my degree by year end. By december that year, I successfully completed my PhD. I have been on my H1B visa for two years now, going on the third this year, it means it will be up for renewal soon. As I attempted to have discussions with my university and legal counsel about starting my green card process, i was told that i cannot qualify for the LC perm since I was hired ABD and would need to either file for myself under (which is highly unlikely to be approved since i do not have many years of experience), or have to initiate a rehire process with a brand new search and my university would need to prove i am the only candidate in the pool that met the hiring requirements. My employer is very concerned about this process and thinks its risky if us citizen with more credentials than me applies. I know many people who have done this very same process successfully, but I am finding a lot of resistance here from the top management. I was also told that if they do initiate the rehire process they will not be able to count any of my experience with the university. i was advised to apply somewhere else by other friends, but i really like my current job. Please advise 

[JoeF]

Hmm, is this a public university? And is your position tenure-track?

A GC for a tenure-track faculty position is pretty easy because that usually qualifies for EB1-OR (Outstanding Researcher). An LC is not required for EB1-OR, just a job offer is needed.

[xTDx]

If your employer states it is risky , there is a source of that information. Perhaps they got your case reviewed with their immigration attorneys. IF your employer is not comfortable supporting you for your immigration needs then change the employer. 

No one here can influence your employer to change their decision and you cannot file employer based petition yourself unless filing for EB1 in NIW.

On a personal note, change is the only constant. May be you will like the new job even more 🙂 

 

[Sandy Adam]

Yes, I am in a tenure track position at a public university, my college dean and department head are very supportive of this step as it guarantees my future with them at the college. We found out that my employment would only be limited to the 6 years so the rehire is a necessary step if i want to maintain this job and if they want to keep me. However, the university immigration attorney says it is possible to do the rehire, it will just be difficult if a US national applies with similar or higher credentials, considering also that they cannot use any of my teaching quality of service to prove the case (it looks like some sort of immigration rule). I don't think the EB1-OR would be a possible alternative because it requires an extensive publication record and international recognition for scholarship or work done, which I haven't reached at this point as I have just earned my PhD two years ago and my scholarship is slowly growing due to the long time it takes to review and publish in peer-reviewed journals. 

I know the possibility of going to another employer is the best option, but I know my college dean and department head want me to stay and both said they're fighting to get this move approved and initiated. We are just concerned of the resistance, or I must say how conservative they are at the higher level in regards to this step. 

[Sandy Adam]

Yes, I am in a tenure track position at a public university, my college dean and department head are very supportive of this step as it guarantees my future with them at the college. We found out that my employment would only be limited to the 6 years so the rehire is a necessary step if i want to maintain this job and if they want to keep me. However, the university immigration attorney says it is possible to do the rehire, it will just be difficult if a US national applies with similar or higher credentials, considering also that they cannot use any of my teaching quality of service to prove the case (it looks like some sort of immigration rule). I don't think the EB1-OR would be a possible alternative because it requires an extensive publication record and international recognition for scholarship or work done, which I haven't reached at this point as I have just earned my PhD two years ago and my scholarship is slowly growing due to the long time it takes to review and publish in peer-reviewed journals. 

I know the possibility of going to another employer is the best option, but I know my college dean and department head want me to stay and both said they're fighting to get this move approved and initiated. We are just concerned of the resistance, or I must say how conservative they are at the higher level in regards to this step. 

[JoeF]

Getting into a tenure-track position is already a sign that the person could qualify for EB1-OR. That isn't achieved without a publication record. All my friends who got tenure-track faculty positions easily got GCs through EB1-OR, even if they just got the PhD. You should discuss your case with a good immigration lawyer experienced in such cases.

 

[pontevecchio]

Run this by say the firm of Murthy to get your specific options. This way no missteps.

[Sandy Adam]

Thank you all, I appreciate the responses. I must say the process can be confusing and deciding which route to go is certainly a stressful process. If I understand correctly, I would possibly qualify for EB2 but only after completing 3 years of work, I wonder if that would require a rehire too since I am currently on H1B. I consulted with an immigration lawyer on my own and she said the rehire is my best option at the time, although it's risky, but at the time i only had 1 year and a few months with my employer, now I am entering my 3 rd year. 

it could also explain why the higher ups are a bit resistant if they don't see the rehire as necessary at the moment. I just wonder if I could wait 3 year and directly proceed to ask for the EB1 or EB2 without any rehire necessary. 

[Ken7]

This is stating the obvious, but the standard H1-B to GC procedure (EB-2 or EB-3 category) is to get PERM, I-140 etc. The PERM application requires the hiring/requirement process where the employer has to prove that no other American candidate was suited for the job. And yes you can't use your work experience from the same employer as part of your qualifications.

[JoeF]

The OP really needs to discuss his case with a good immigration lawyer. He seems to rely on incorrect information, like "EB2 only after 3 years", which is completely wrong.

I still think EB1-OR would be fairly easy for him (doesn't require an LC, just a job offer.) EB2-NIW may also be possible, which also doesn't require an LC.

The OP males things way too complicated, due to his lack of understanding of the options.