us visa bwah?
July 12, 2015 1:43 PM Subscribe
YANA/MI(mmigration)L, but can you help parse what a friend who is an immigration lawyer is saying relating to US green cards, especially the EB-1?
I'm currently on the tail end of the OPT phase of my F-1 visa, and I'm looking at applying for the EB-1. I'm talking to a friend who is also an immigration lawyer about it, and I asked her if it was possible to stay in the US while I wait for the visa to be processed, kinda like how in Australia when you apply for permanent residency you get a bridging visa that lets you stay in Australia while you wait.
Her response was somehow both informative and cryptic. Apparently you have to apply for a green card AFTER you get the authorization, but you can apply for both at the same time? And you can get work authorization while you wait? As long as you don't leave the country for 90 days? So MAYBE?
I know I could just ask her to clarify, but I thought I'd do some independent scouting first before I reply with "bwah?". Here's the text I'm trying to decipher:
I'm currently on the tail end of the OPT phase of my F-1 visa, and I'm looking at applying for the EB-1. I'm talking to a friend who is also an immigration lawyer about it, and I asked her if it was possible to stay in the US while I wait for the visa to be processed, kinda like how in Australia when you apply for permanent residency you get a bridging visa that lets you stay in Australia while you wait.
Her response was somehow both informative and cryptic. Apparently you have to apply for a green card AFTER you get the authorization, but you can apply for both at the same time? And you can get work authorization while you wait? As long as you don't leave the country for 90 days? So MAYBE?
I know I could just ask her to clarify, but I thought I'd do some independent scouting first before I reply with "bwah?". Here's the text I'm trying to decipher:
So actually the process/fee overview I gave was for the I-140 immigrant petition -- there is no automatic nonimmigrant status that you receive by filing the I-140 petition for EB-1 classification, and the I-140 petition itself doesn't get you the green card, but upon approval it qualifies you to adjust status (form I-485). Since the I-485 comes with its own USCIS filing fee of $1070 and you need to take a medical exam and gather a bunch of other docs for it, often people wait until the I-140 petition is approved and then file the I-485, which upon approval is what would get you the green card.
In the case of an I-140 filed for EB-1 classification, since there is no visa backlog, you are technically able to concurrently file the I-485 adjustment of status application, which upon filing keeps you in a "period of stay authorized by the Attorney General" unless/until the I-140 petition is denied. And the nice thing about the I-485 is that you can also concurrently file the I-765 Employment Authorization Document to get work authorization. The I-485 itself won't be approved until the I-140 is approved, but while all of that is pending, the I-765 is approved within 90 days of filing. So I think you would benefit from filing the whole package concurrently and not doing premium processing, so that you could have a basis for staying and working in the US. If there is a Request for Evidence on the I-140, you would be provided 84 days to respond to it and then USCIS would probably take at least a few weeks to review the evidence after receiving it under regular processing, so that could stretch out the amount of time you are authorized to stay/work here. Bear in mind though that after you file the I-485, you shouldn't travel outside the US until the EAD is approved, since yet another thing that is concurrent with EAD is "advance parole" or international travel authorization. So you should plan not to take any international trips for about 90 days after filing the package if you go with this plan.
Best answer: Having gone through this process, she means that yes, there is a way to stay in the US while your EB-1 application is being reviewed.
I-140 is the immigrant petition: it will result in them saying "yes, you are allowed to immigrate to the US" or "no, you are not allowed to immigrate to the US". Approval of this petition actually doesn't change your status at all, it just tells you you are entitled to apply to adjust your status.
What changes your status upon approval is form I-485, together with a bunch of supporting documentation your friend mentions and its own fees. If you're pretty confident your immigrant petition will get approved (I-140), you can file them both at the same time; if your immigrant petition is not approved and you had filed for I-485 and paid the $1070 fee, it's lost money. But, applying for I-485 is what lets you *also* apply for a temporary Employment Authorization Document (EAD), which will let you work in the US in the meantime while this is all in process (usually up to a year). The "advance parole" which she mentioned means if you travel outside the US, they will let you back in on the basis of this document. So in practice, it means you can't leave the US until you get the EAD in your hands (up to 90 days, but mine was much faster, about a month) while your other applications are being processed (which can take close to a year).
posted by Ender's Friend at 2:16 PM on July 12, 2015 [5 favorites]
I-140 is the immigrant petition: it will result in them saying "yes, you are allowed to immigrate to the US" or "no, you are not allowed to immigrate to the US". Approval of this petition actually doesn't change your status at all, it just tells you you are entitled to apply to adjust your status.
What changes your status upon approval is form I-485, together with a bunch of supporting documentation your friend mentions and its own fees. If you're pretty confident your immigrant petition will get approved (I-140), you can file them both at the same time; if your immigrant petition is not approved and you had filed for I-485 and paid the $1070 fee, it's lost money. But, applying for I-485 is what lets you *also* apply for a temporary Employment Authorization Document (EAD), which will let you work in the US in the meantime while this is all in process (usually up to a year). The "advance parole" which she mentioned means if you travel outside the US, they will let you back in on the basis of this document. So in practice, it means you can't leave the US until you get the EAD in your hands (up to 90 days, but mine was much faster, about a month) while your other applications are being processed (which can take close to a year).
posted by Ender's Friend at 2:16 PM on July 12, 2015 [5 favorites]
I've done this, and Ender's Friend is right. But my EAD took very close to the full 90 days, which was disappointing since most people told me that it 'almost always' takes more like a month and so I had planned for that.
posted by the agents of KAOS at 2:35 PM on July 12, 2015 [1 favorite]
posted by the agents of KAOS at 2:35 PM on July 12, 2015 [1 favorite]
Ender's Friend has it. (I used to work as a paralegal for an immigration lawyer. IANAL, TINLA.)
posted by immlass at 2:45 PM on July 12, 2015 [1 favorite]
posted by immlass at 2:45 PM on July 12, 2015 [1 favorite]
nthing Ender's Friend. This is concurrent filing, where USCIS allows you to start spinning a bunch of plates in sequence, and the result is that you get to stay and subsequently work legally in the US.
It's not a cheap bit of bureaucracy, especially if you retain a lawyer to check things over, but probably cheaper than the alternative.
posted by holgate at 3:19 PM on July 12, 2015 [1 favorite]
It's not a cheap bit of bureaucracy, especially if you retain a lawyer to check things over, but probably cheaper than the alternative.
posted by holgate at 3:19 PM on July 12, 2015 [1 favorite]
I am not a lawyer, but I just wanted to clarify what I understand about advance parole that may not be correct how Ender's Friend explained it. Advanced parole does not allow you to get back in if you leave before your I-485 is approved, it just means your application is not suspended if you leave the US. Normally, if you leave your application automatically gets put on hold and when you get back you have to have let them know you want to continue with your application, but of course your application goes to the bottom of the pile again. Advanced parole prevents this. If this is a factor, you may also run into trouble as the receipt of your I-485 may allow you to remain in the US, but your entry visa, if required for your country, may be tied to your F-1 which may be effectively cancelled when you submit your I-485. If this is the case, when you leave you could have to apply for an entry visa in person inside your country of citizenship in order re-enter the U.S., or wait for your I-485 to be approved.
Another thing you should clarify with your friend for your situation is what is referred to as "dual intent." This could arise since as your F-1 is a non-immigration class visa, if you have entered the country recently under that visa, after you had the job offer you are applying for the EB-1 under, the USCIS may consider you to have entered the country fraudulently as you presented yourself to enter the country on the grounds that you would not try to immigrate, and then applied to immigrate. If there is a reasonable amount of time between your entry and application to change status you should be OK. There may be more leeway for this for your type of application, but may be worth looking in to if you have returned recently.
posted by Yorrick at 9:47 PM on July 12, 2015
Another thing you should clarify with your friend for your situation is what is referred to as "dual intent." This could arise since as your F-1 is a non-immigration class visa, if you have entered the country recently under that visa, after you had the job offer you are applying for the EB-1 under, the USCIS may consider you to have entered the country fraudulently as you presented yourself to enter the country on the grounds that you would not try to immigrate, and then applied to immigrate. If there is a reasonable amount of time between your entry and application to change status you should be OK. There may be more leeway for this for your type of application, but may be worth looking in to if you have returned recently.
posted by Yorrick at 9:47 PM on July 12, 2015
Everything everyone says is true, but some things I would consider if I was you: Will you have an underlying non-immigrant status that authorizes you to work (O/L/H/TN)? If not, and your I-140 gets denied, the rug gets pulled out from under you and your EAD is no longer valid and you aren't in any kind of valid status. Also to that end, when does your OPT expire? Depending on what the "tail end" is it's likely you could have a lapse between your F-1/OPT status and your EAD/AP authorization, and you wouldn't be here in any authorized capacity; if you are employed you'd need to be off payroll/not work until you had authorization - AND to be here while your adjustment of status is pending you need to file while you have a status to adjust.
I'm guessing you're in a STEM field? And "tail end" means a December-ish end of the 17-month STEM OPT extension? And working for a place that is not interested in paying for immigration/your H-1B petition wasn't selected in the lottery? An EB-1 can be tricky and USCIS can be fickle, and if you've *just* finished some kind of grad program they might think you aren't particularly extraordinary at this point.
I spent ~10 years of experience working for two immigration attorneys, primarily preparing O-1s and EB-1s (drafting the petition letters and letters of recommendation). I never had a denial, I'd have done this one, but if I'm right about your circumstances I'd wish I didn't have to. Even if my guesses in the preceding paragraph are wrong, F-1 to EB-1 is an expensive leap of faith.
posted by good lorneing at 9:50 PM on July 12, 2015
I'm guessing you're in a STEM field? And "tail end" means a December-ish end of the 17-month STEM OPT extension? And working for a place that is not interested in paying for immigration/your H-1B petition wasn't selected in the lottery? An EB-1 can be tricky and USCIS can be fickle, and if you've *just* finished some kind of grad program they might think you aren't particularly extraordinary at this point.
I spent ~10 years of experience working for two immigration attorneys, primarily preparing O-1s and EB-1s (drafting the petition letters and letters of recommendation). I never had a denial, I'd have done this one, but if I'm right about your circumstances I'd wish I didn't have to. Even if my guesses in the preceding paragraph are wrong, F-1 to EB-1 is an expensive leap of faith.
posted by good lorneing at 9:50 PM on July 12, 2015
Also, your friend mentions a fee overview at the beginning of that - if you're planning on doing this through her and she expressed none of my skepticism please please please get a second opinion.
posted by good lorneing at 9:52 PM on July 12, 2015
posted by good lorneing at 9:52 PM on July 12, 2015
Response by poster: To clarify: there's been more communication than this, I am not in a STEM field, and my OPT ends at the end of August.
(Something I am puzzled about that I never got a straight answer from anyone is that the visa stamp in my passport, which was renewed for OPT, last for 5 years multiple entry and I have no idea why.)
posted by divabat at 10:05 PM on July 12, 2015
(Something I am puzzled about that I never got a straight answer from anyone is that the visa stamp in my passport, which was renewed for OPT, last for 5 years multiple entry and I have no idea why.)
posted by divabat at 10:05 PM on July 12, 2015
Woah I just checked your posting history - with an MFA and five years of experience, unless you have major publications, lots of press coverage and some big deal awards, that's really, really risky. If your friend hasn't sounded any concerns chat to someone else ASAP.
The stamp? That's one of those things where a picture works best, which is why it's hard to get a straight answer. Because F-1 status lasts as long as you're a student, I-94 entry records usually say D/S or duration of status, and the visa might have some kind of arbitrary ending on it (say, five years).
posted by good lorneing at 10:12 PM on July 12, 2015
The stamp? That's one of those things where a picture works best, which is why it's hard to get a straight answer. Because F-1 status lasts as long as you're a student, I-94 entry records usually say D/S or duration of status, and the visa might have some kind of arbitrary ending on it (say, five years).
posted by good lorneing at 10:12 PM on July 12, 2015
Response by poster: good lorneing: my immigration lawyer friend and I actually already complied a pile of evidence, a lot of which isn't going to show up in my posting history (awards, memberships, having way more than 5 years of experience, references from very notable people in my field, etc) which is why I said there has been more communication than this. I get your concern, but please don't look at my posting history and try to gauge my visa chances from there.
posted by divabat at 1:17 AM on July 13, 2015 [2 favorites]
posted by divabat at 1:17 AM on July 13, 2015 [2 favorites]
This thread is closed to new comments.
"The fee I quoted you is not for the thing you actually want, but it is for a thing that can help lead to that, so most people file for it first and then file the thing that actually can get you the thing you actually want. On top of that fee, you will need to spend more money to get what you actually want. The good news is you can file for both at the same time. (translation: send more money) Plus, plan to be stuck somewhere for 90 days while we sort all this out for bureaucratic reasons having to do with the immigration office."
IANAL, though I have had a couple of law classes and worked in insurance, which is very driven by legal stuff and I had to write letters that complied with legal stuff etc as part of that job, fwiw.
Best of luck.
posted by Michele in California at 1:57 PM on July 12, 2015