3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

I am a student currently in the US on a valid F1 visa. I want to immigrate to US. Could you please let me know the best way to do this?

Answer:

There are a number of ways to obtain U.S. permanent residence. I couldn’t say what the best way would be for you without first speaking with you and finding out more about you.

But the most common way for an F-1 student to obtain permanent residence is through sponsorship through an employer. Usually the F-1 student will work for a company in their field on an Optional Practical Training employment authorization card for up to a year after their graduation. During that time, the employer can petition for the foreign national to change their status to an H-1B, which usually begins in October, the beginning of a new fiscal year when H-1B visa numbers become available.

The employer would then go through the PERM Labor Certification process to show that there are no qualified U.S. workers to fill the position. When the Department of Labor has certified the PERM application, the employer would file an immigrant visa petition under the EB-2 or EB-3 preference category.

Depending on which preference category the petition was filed under and what country the foreign national (or their spouse) is from, the foreign national may then have to wait for a visa to become available for that petition before they are able to file their application for adjustment of status (green card). The entire process usually takes at least a year and often takes 5 years or longer.

Of course, as I mentioned, there are a number of ways to obtain permanent residence, therefore you may wish to consult with an immigration law attorney to determine what would be the best process for you.

2) Question:

I have been called in for an immigration interview for my employment-based I-485 adjustment of status.  Is that normal procedure now or it is unusual for this to occur?  My file has been with USCIS for over a year now since all the documents was submitted. Also, the sponsoring company has reduced my hours drastically due to the economy but they are still sponsoring me.   I found employment in the same field with a different company.  Please advise me on whether this is going to be an issue.

Answer:

As a general rule, employment-based applications for Adjustment of Status do not require interviews. However, USCIS has the authority to require an interview where there is some issue or fact that is in question that can be resolved by interviewing the applicant. This is commonly done where the applicant is filing for adjustment of status under the 245(i) “amnesty”. It also sometimes occurs where it has been a long time since the I-140 was approved. The fact that you have been called for an interview does not necessarily mean that there is something wrong with your application.

The fact that your company has reduced your hours could possibly be a problem, however. While there is no requirement to work for the petitioning company prior to being granted adjustment of status, there is a requirement that the petitioning company continue to have an intent to employ you pursuant to the I-140 petition. The fact that the company is not employing you for the hours and salary specified in the I-140 calls into question whether the company intends to employ you for the listed hours once you are granted adjustment of status and whether the company has the ability to pay the proffered wages.

You should consult with an immigration law attorney right away to find out if this issue can be overcome, or whether you would be eligible to port your petition to the new employer.

3) Question:

I have a little over 5 years of work experience in my field and I have a Bachelors degree. Of the 5 years, 2 years of experience is from my current employer. Am I eligible to have my company file a PERM Labor Certification filing for me in the second preference (EB2) category?

Answer:

The second preference employment based category (EB2) is for those foreign national workers who are working in a position that requires a masters degree or the equivalent as the minimum requirement. A combination of a bachelors degree and 5 years experience after the degree is considered by the Department of Labor to be the equivalent of a masters degree.

You probably do not have 5 years counting toward an EB-2 PERM Labor Certification. As a general rule, the 5 years must be from a different company. Since you did not have 5 years experience when you started in the position, you cannot claim that the position requires at least 5 years experience.

However, experience with the company can sometimes be counted when it can be shown that the experience gained has been in other positions which are not substantially similar to the position that is being offered in the PERM application or where it can be shown that it is no longer feasible for the company to train an employee for the position.

The PERM process is complicated, long, expensive and the slightest mistake can lead to a denial. It is highly recommended that companies hire an experienced immigration law attorney to handle their PERM applications.