There are only 65,000 H1B visas available each year and another 20,000 for U.S. advanced degree holders. It’s no surprise that with USCIS receiving over 200,000 H1B Cap petitions during the open filing period, missing out on the H1B Cap is becoming a familiar event.
For the benefit of foreign workers and employers, we lay out a pathway for potential employees who were not selected in the H1B Cap to apply directly for an Employment Based Green Card.
A. The H1B Cap Challenge
In 2016, USCIS received over 230,000 H1B petitions. This means that less than 40% of petitions would be adjudicated and approved by USCIS. As the number of applications submitted in the H1B Lottery continues to rise, there may be a less than 25% chance of petitions being chosen in the lottery. Thus, the H1B process for many individuals can turn into an endeavor that lasts over 1, 2 or more H1B filing seasons.
The increasing uncertainty and inherent costs associated with the H1B Cap make it impractical for most employers to try submitting a petition more than 2 or 3 times. On the other hand, the ability of a foreign national to remain in the U.S. in a valid nonimmigrant status or to find a viable alternative decreases with each subsequent year.
B. Green Card As An H1B Alternative
An often-overlooked option for many individuals is skipping over the H1B and applying directly for legal permanent residence. The entire Green Card or Immigrant Petition process for many individuals in the U.S. can be completed in as little as 15 to 24 months. With proper planning, it should be possible for many employers and employees to use this process as an effective H1B alternative.
NOTE: Unfortunately, because of per-country limits for employment based immigrant visas, those born in India and China may not be able to take advantage of this pathway as it would take too long before the foreign national can file an Adjustment of Status application and obtain the EAD or Green Card.
In order to better understand this interesting alternative to the H1B Cap, we present some case scenarios here.
DID YOU KNOW?
Contrary to the popular belief, there is no requirement that an individual be in H1B status before an employer can start the Green Card process. There is also no USCIS requirement that the employee must have been working for a minimum period of time. The Employment based Green Card process can be initiated any time.
My Case Scenario
Anthony, a UK national, is in the U.S. in valid F-1 status. He graduated from university one year ago with a BS in Computer Science and is currently working for his employer pursuant to OPT (Optional Practical Training). His OPT expires in 3 months and he is eligible for a 24-month STEM OPT extension. The employer filed an H1B Cap petition but Anthony’s petition was not picked in the H1B lottery. The employer would really like Anthony to be able to remain in the U.S. What H1B alternatives could they consider?
First, as Anthony is eligible for the 24-month STEM OPT extension, he can and should file for the extension immediately. If approved, Anthony’s work authorization and status would be extended for an additional 24 months. Anthony’s employer also has the option of filing an H1B petition in the following year’s H1B Cap.
Second, Anthony’s employer can start the Green Card process immediately. Based on current timelines, if the employer begins the recruitment process right now, Anthony can conceivably have an approved Green Card before his F-1 status and STEM OPT expires.
C. The Green Card Process – An Overview
Securing an employment-based Green Card is generally a 3-step process.
1. PERM Labor Certification Process
To get the “Green Card” process started, an employer must generally obtain a “certified” Labor Certification (“LC”) from Department of Labor. The DOL issues permanent labor certifications through the PERM labor certification process.
DID YOU KNOW?
The PERM labor certification application is submitted through an Application For Permanent Employment Certification – ETA Form 9089.
2. Form I-140
After the Labor Certification is approved, the employer must file the Form I-140, Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS).
The total processing time for the PERM and Form I-140 can take as little as 10 to 12 months if the Form I-140 is filed via Premium Processing.
F-1 visa holders are advised not to travel while an I-140 is pending without speaking to an immigration attorney. The F-1 visa does not support “dual intent” and an application for an F-1 visa can be denied for this reason.
3. Adjustment of Status
Either concurrently or after the Form I-140 is filed or approved, the employee can file for Adjustment of Status (AOS) as long as the priority date is current.
Along with the AOS, the employee can also file for the Employment Authorization Document or “EAD Card”, which would allow him or her to work in the U.S. while the Green Card application is pending. The EAD card should take approximately 3 months and the AOS should be processed within 6 months.
DID YOU KNOW?
Once the Adjustment of Status is filed, the foreign national is authorized to remain in the U.S. based on the pending application. Furthermore, the EAD allows the foreign national to start working on the EAD immediately. It is generally recommended, however, that the applicant maintains the underlying nonimmigrant status until the green card is approved.
My Case Scenario
Elena, a national of Ecuador, is a Biologist. She was working in the U.S. as a Research Scholar in J-1 status at a university. Her employer filed a cap-exempt H1B on her behalf and it was approved and her status changed to H1B. She is currently working for the university in valid H1B status. A chemical company were interested in hiring Elena. The Cap-subject H1B petition they filed for her did not make it in the Lottery. The chemical company really wants to bring Elena on board and is even willing to wait until the H1B cap next year. The chemical company already checked with an attorney and the attorney determined that Elena’s background does not qualify her for an O-1 Extraordinary Ability visa. Could there be any H1B alternative for them?
In addition to trying again in the H1B Lottery, the chemical company can immediately start the PERM/I-140 process on Elena’s behalf. As the PERM and I-140 constitute an offer of future employment, the chemical company can begin the PERM/I-140 process for Elena even if she is not working for them. As long as she maintains her H1B status, Elena can eventually apply for Adjustment of Status after the PERM and I-140 are approved. She can even begin working for the chemical company once she obtains an approved EAD.
4. Priority Date And Adjustment of Status Filing
It is important to remember that an Adjustment of Status application can only be filed when the foreign national’s priority date is current as per the Visa Bulletin.
The Employment Based 2nd Preference category (EB-2) for most countries is always “Current”, meaning there are always immigrant visa numbers available.
The Employment Based 3rd Preference category (EB-3) is slightly oversubscribed. By the time a Labor Certification is filed (the date the priority date is set) and is certified by the DOL, the priority date is usually current, meaning an Adjustment of Status application can be immediately filed.
DID YOU KNOW?
Immigration regulations established maximum number of immigrant visas (or Green Cards) that can be issued each year and in each category. These are further restricted by per-country limits. Because so many people want to live in the U.S., some visa categories become “oversubscribed”, i.e. more people apply than there are visas available.
My Case Scenario
Adah, a national of Nigeria, is working pursuant to her STEM OPT and only has approximately 2 months left before her OPT expires. She has a degree in Economics so she is not eligible for the 24-month STEM extension. She tried once before for the H1B Lottery and lucked out. She has just been informed by her employer that her 2nd H1B petition has also been rejected by USCIS. Her employer would like to start the PERM/I-140 process and keep her in the country. Will it be feasible?
As Adah’s OPT will expire in 2 months, she will only be allowed to remain in the country for the additional 60-day grace period after that, for a total of 4 months. It will not be possible for the employer to complete the entire PERM/I-140 and begin the Adjustment of Status process before Adah must leave the country, unless she can find an alternative visa status that allows her to remain in the country.
If there are no other alternatives, Adah should leave the U.S. before her grace period expires. In the meantime, the employer can begin the PERM/I-140 process for Adah. Once the Form I-140 is approved, USCIS will send the approved petition to the National Visa Center so that Adah can obtain an immigrant visa from the U.S. Consulate in Nigeria. The entire process will take approximately 18 months if the PERM is not audited and the employer uses Premium Processing for the I-140.
The employer can also try for a 3rd go at the H1B Lottery. If the H1B petition is picked in the lottery and eventually approved, Adah can file an Adjustment of Status application based on the approved I-140 once she’s back in the U.S. under valid H1B status.
VisaPro specializes in developing customized strategies after H1B Cap is reached. The Employment Based Green Card is an often-overlooked H1B alternative which may offer many employers and their employees a unique solution to a frustrating problem.
If you have missed the H1B lottery contact our low cost immigration lawyers today for a FREE H1B Alternatives Consultation.
We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.
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