sfbatraining.com

FROM F1 to H1B TO GREEN CARD

Once the F1 student has changed his or her status to that of H1B, he or she may wish to adjust his or her status to that of lawful permanent resident, or green card holder. A green card can be obtained by sponsorship by the H1B visa holder’s employer, or another one. If the person wishes to apply for the green card, and the employer is willing to sponsor him or her, he or she should apply for the Labor Certification with the Department of Labor as soon as possible.

~ Green Card processing through Labor Certification can take up to a few years to process.

~ Reduction in Recruitment (“RIR”) is a process that can theoretically speed this process up; however, the reality since 9/11 is that the BCIS is approving less and less applications for RIR.

RIR is a process wherein Labor Certification can be obtained if the employer has conducted a good faith effort to recruit United States workers for a period of six months prior to the filing of a labor certification and failed to find a qualified United States worker. The Department of Labor may rely on the employer’s efforts to forego recruitment under its supervision.

The Department of Labor provides a four-prong test for establishing a good RIR case.

~ If the employer can show that the job offered is in one of those occupations for which there is little or no availability of qualified United States workers,

~ there are no restrictive requirements,

~ that they meet the prevailing wage and

~ that the employer has shown adequate recruitment through sources normal to the occupation and industry within the previous six months, then the Department of Labor may approve the RIR.

If the RIR fails to be approved, as is becoming more frequent, the case does not fail. The case merely falls back in place and treated as any other case, thus taking years to complete. For this reason, it is prudent on the part of the H1-B visa holder to apply for the green card as early as possible.

Once the employer has received an approved Labor Certification, the employer may apply to the BCIS with the form I-140. The alien’s spouse and children may be included in the petition. Processing time at this stage can take three to eight months. Once the I-140 is approved, the next step is for the alien to apply for Adjustment of Status. Once application is made for Adjustment of Status, the alien and his or her spouse and children will receive work authorization within 90 days.

The alien will have an interview for the green card within six months to three years. Once the interview is successfully completed, the alien and his or her family will receive their green cards and become lawful permanent residents of the United States.