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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 25084
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hello, I am currently a legal alien residing in the US on

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Hello,

I am currently a legal alien residing in the US on an F1 visa. I recently graduated with a Ph.D. I currently hold the OPT extension (expires 8/2014). I have received a job offer in writing which states that the company is going to sponsor my green card application after six months, provided I am an employee in good standing at that point. The job start date is 9/30, so six months from the start date would be early April 2014. The company also plans to apply for my H1-B on 4/1/2013.

I asked a company HR person whether it is legally possible to apply for H1-B and permanent residence at the same time. They said they have experience dealing with these matters, and that this is not an issue. I am not entirely convinced, since I know H1-B is a dual-intent status useful in bridging non-immigrant F-1 and immigrant permanent residence.

So, my questions are as follows:

(1) Is it legal for a company to sponsor an employee for an H1-B and permanent residence concurrently? If not, what are the legal ramifications?

(2) If it is legal, what is the most likely time frame for actually obtaining the green card? Assume the company sponsors for green card and H1B concurrently on 4/1. I should mention I am a national of Serbia. I know green card availability varies by country, but I don't know what the current wait time is for Serbian nationals.

Thanks very much!

Best,
GP
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello, my name is Judith. Thank you for this opportunity to answer your questions.

So, my questions are as follows:

(1) Is it legal for a company to sponsor an employee for an H1-B and permanent residence concurrently? If not, what are the legal ramifications?
Yes, it is a common practice. The PERM/I-140 is an offer for the future. Since the job offer is prospective in nature there is no issue. Also, it takes approximately 3-4 months of prep work before the actual PERM is filed. The company has to do prevailing wage request and then do all of the recruitment which has to have the recruitment period open for at least 30 days before they can submit the PERM. You will be near the end of your cap gap by the time your PERM is filed.
(2) If it is legal, what is the most likely time frame for actually obtaining the green card? Assume the company sponsors for green card and H1B concurrently on 4/1. I should mention I am a national of Serbia. I know green card availability varies by country, but I don't know what the current wait time is for Serbian nationals.

Since you hold a PhD you would be in the EB2 category and that at present is current meaning that once the PERM is approved you can file your adjustment of status with the employer's I-140. You would have your resident status in approx. 6 months after filing the adjustment of status as long as the category remains current.

Your PERM would take approx. 6 months after filing for approval.

Judith

Customer: replied 1 year ago.

Thank you, Judith.


 


I need some clarification.


 


(1) You said I would "be near the end of [my] cap gap by the time [my] PERM is filed." What exactly does that mean? The PERM refers to labor certification, right?


 


(2) With respect to timing, let's get precise. Suppose they start prepping for my I-140 on 4/1. It would take them 3-4 months to submit the PERM, which would be between 7/1 and 8/1 of 2014. If PERM takes about 6 months to approve, and another 6 months for adjustment of status to be processed (assuming EB2 numbers are current for Serbia), that means I would likely receive my permanent resident status in July or August of 2015. Is this correct?


 


(3) Do you have any idea whether EB2 applications are current for Serbian nationals? Where can I look up this highly specific information?


 


Thanks very much!


 


GP

Expert:  Judith replied 1 year ago.

(1) You said I would "be near the end of [my] cap gap by the time [my] PERM is filed." What exactly does that mean? The PERM refers to labor certification, right?

Yes, PERM is the labor cert.

 


(2) With respect to timing, let's get precise. Suppose they start prepping for my I-140 on 4/1. It would take them 3-4 months to submit the PERM, which would be between 7/1 and 8/1 of 2014. If PERM takes about 6 months to approve, and another 6 months for adjustment of status to be processed (assuming EB2 numbers are current for Serbia), that means I would likely receive my permanent resident status in July or August of 2015. Is this correct?

Yes, it all goes perfectly. The lawyers and HR needs to do each step without sitting on the case. You cannot control that.

 


(3) Do you have any idea whether EB2 applications are current for Serbian nationals? Where can I look up this highly specific information?

http://travel.state.gov/visa/bulletin/bulletin_6050.html

Look at the Employment Based box "all chargeability" 2nd Preference. Serbia is included in that.

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 25084
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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