 ASK VISALAW.COM
by Marc Topoleski, Partner in SSHD's Detroit, Michigan office.
Do I have to work for my employer in H-1B status for one year before starting the green card process?
There is no requirement under immigration law that requires a company or individual to wait a certain period of time after entering the US in H-1B status before pursuing Permanent Residence. Under the immigration laws, the nonimmigrant and immigrant visa systems are virtually separate, and if an employer is willing and able, the process of green card sponsorship can be started at any time. One should note, however, that employer sponsorship generally requires you to stay with that employer until the green card is finally issued. And, due to the current uncertainty in processing delays, it is probably best to begin as soon as you and your employer are comfortable that the employment relationship is going to be long-term.
I am an H-1B visa holder. If I get laid off, is it true that there is a 10-day grace period for me to remain in legal H-1B status after leaving my sponsoring employer?
This is probably one of the most popular misconceptions in immigration law. Technically, there is a 10-day grace period for a person to legally remain in the US beyond the expiration of their period of authorized stay, as indicated on the individual’s I-94 card. This 10-day grace period does not apply in situations where your employment ends prior to the end of the I-94 period, as in a layoff situation. In this situation, you are out of status as of the date your employment is terminated. Therefore, if you feel you are in danger of being laid off, you should take steps to obtain an alternative status, whether through a new employer or in a different visa category, prior to being laid off so you do not experience a lapse in status.
If an individual or employer decides to file a petition with the INS for permanent residence for either themselves or their employee before April 30, 2001 to take advantage of the temporary restoration of Section 245(i) under the LIFE Act, are they putting themselves at risk for INS problems?
Conceivably, the INS, in the case of an I-130 petition, or the DOL, in the case of a Labor Certification, could use information contained in a filing to scrutinize an individual’s or employer’s legal status. However, in practice, this very rarely occurs. The INS service personnel and enforcement personnel operate almost exclusively in an independent fashion, making it highly unlikely that the two branches would share information. The enforcement division of INS has stated on numerous occasions that its highest priority is going after criminal aliens, and that realistically it just does not have the resources to conduct investigations of individuals or employers based on information contained in immigration filings. Employees should be cautioned that if an employer learns that you are out of status and was not aware that this was the case, you may find yourself out of work.
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