Immigration thoughts from an Immigration Lawyer.

H1B or L1 is not always a must for Green Card application under EB-2 or EB-3

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Some people say that if you want to apply for a green card under the EB-2 or EB-3 category, you need to have an H1B visa. This is not true for everyone. Even though H1B is preferable, it is not a prerequisite. Here is why…

Green card applications under EB-2 or EB-3 can mean many years of waiting for many people. The challenge is to keep a valid non-immigrant visa while you are waiting for your green card. The reason why H1B is popular is because it allows “dual intent.” This means you can have the intent to immigrate even though H1B is a non-immigrant visa. Practically, what this means is that you can apply for green card at any time, and can keep using your H1B visa to travel abroad until the very moment you become a permanent resident. Even if your green card application is denied, as long as you have a valid H1B, you can try again. This is the same case for people holding an L1 visa (intracompany transferee).

On the other hand, if you have other types of non-immigrant visa (E, O, TN, etc.), you cannot have “dual intent.” Therefore, you cannot have the intent to immigrate. However, this does not mean you can never apply for a green card. It means you need to be careful about the timing of the application. The immigration law only requires that when you apply for a non-immigrant visa, you cannot have an immigrant intent. However, a change of mind is allowed. For example, if you entered the U.S. with an O visa, but later decide to apply for a green card, you can do so. There are two issues you need to be aware of:

1. Once you file for I-140 (an immigrant petition), you can no longer renew your non-immigrant visa, since you have already expressed your immigrant intent. Therefore, you need to make sure that you can get your green card on time (= before your visa expires) before you file for I-140. For some people (e.g. Chinese, Indian), this does not work because they have too long of a wait time. This is part of why people think H1B is a prerequisite for green card application. However, if you were born in a country that falls under the “All Chargeability Areas,” you are likely to get your green card within a few years. So, if you prepare well, you won’t need to switch to H1B before applying for a green card.

2. The other restriction for non-H1B/L1 visa holders is traveling abroad while your I-485 (application for adjustment of status) is pending. There will be about 3 months of period where you cannot travel abroad. After you file I-485, you will need an Advance Parole (which takes about 3 months for adjudication) to travel abroad. Otherwise, your I-485 will be denied, and you have to go through the consular processing (applying for an immigrant visa at your country’s embassy or consulate). This means a longer processing time, and unless your work can be done remotely, you won’t be able to work for your U.S. employer.

In conclusion, H1B status is preferable, and may be a must for some people, but not always. However, you need to be very careful about the timing of application. So, if you are thinking about applying for a green card and do not have an H1B visa, then it’s very important to understand your visa situations well and prepare well. And if you can, try applying for H1B as an insurance will also be a good idea.

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