Immigration Issue

[silverboy]

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Hi. I wanted to ask you guys a question mabe you can help me with.

I came to the US for security reasons and apply for political asylum. My application is still pending since 1 year ago. They say there are only a limited number of spots per year and there are tons of petitions for asylum so I could be waiting for a long time.

I am applying for Internal medicine residency right now to match in 2005. If I were to be offered a working visa, specifically and H1 visa, is it possible for me to take it and file the petition to the INS and switch from asylum application to H1 visa?

Any help will be appreciated!

Thanks

 

[Resident Alien]

Wow. You really need to either ask a lawyer or the NRMP folks. I doubt you will find an opinion to the level of expertise needed to help you.

 

[tBw]

I am applying for Internal medicine residency right now to match in 2005. If I were to be offered a working visa, specifically and H1 visa, is it possible for me to take it and file the petition to the INS and switch from asylum application to H1 visa?

Any help will be appreciated!

Thanks

I'm a little confused about what you are asking but -

(a) the H1 visa is a temporary work visa so it would not be a good idea to follow up only with that anyway if you were hoping to stay in the US permanently

(b) The INS will not allow you to "switch" visa categories as far as an application is concerned

(c) That being said there is nothing to stop you having both of them going concurrently (I infact did exactly that several years ago)

(d) you may want to look into the National Interest Waiver visa. This used to be a common way for physicians to gain permanent residence, especially if they working anywhere "underserved". This was changed a few years back to stop physicians using this route but I am reasonably certain that was reversed again last year to re-allow this.

Regardless I am not an immigration lawyer I have only been through the process and so none of the above should be taken as authoritative - as stated by someone else you should consult an immigration lawyer.

www.immigration.com is a good resource (am I allowed to refer other web sites if they are relevant and non-competing with SDN???).

 

[silverboy]

Thanks for your help tBw. I have a question for you. Did you actually had asylum application and at the same time took an H1b visa offering and had both applications at the same time and at the end you got the green card through either route ( ei. which ever came first??)

If I were asked if I wanted an H1b visa at an interview should I say yes in spite that I have already and EAD working permit and an asylum application (taking forever) running?

The reason that I am interested in H1b visa is that although it is a temporary working visa, it can ultimately turn into a green card after 2 or 3 years if your employer agrees in having you for a long time as an employee. This will "cover my back" just in case my asylum application gets denied or something bad like that.......you see.....I feel that I could hold on to a job for 3 years and earn my green card through this route man.

I appreciate your input.

Sboy. 😎

I'm a little confused about what you are asking but -

(a) the H1 visa is a temporary work visa so it would not be a good idea to follow up only with that anyway if you were hoping to stay in the US permanently

(b) The INS will not allow you to "switch" visa categories as far as an application is concerned

(c) That being said there is nothing to stop you having both of them going concurrently (I infact did exactly that several years ago)

(d) you may want to look into the National Interest Waiver visa. This used to be a common way for physicians to gain permanent residence, especially if they working anywhere "underserved". This was changed a few years back to stop physicians using this route but I am reasonably certain that was reversed again last year to re-allow this.

Regardless I am not an immigration lawyer I have only been through the process and so none of the above should be taken as authoritative - as stated by someone else you should consult an immigration lawyer.

www.immigration.com is a good resource (am I allowed to refer other web sites if they are relevant and non-competing with SDN???).

 

[tBw]

Thanks for your help tBw. I have a question for you. Did you actually had asylum application and at the same time took an H1b visa offering and had both applications at the same time and at the end you got the green card through either route ( ei. which ever came first??)

The reason that I am interested in H1b visa is that although it is a temporary working visa, it can ultimately turn into a green card after 2 or 3 years if your employer agrees in having you for a long time as an employee. This will "cover my back" just in case my asylum application gets denied or something bad like that.......you see.....I feel that I could hold on to a job for 3 years and earn my green card through this route man.

Hi Silverboy - this topic is complex and you really should consult a qualified lawyer on this, but I will try to explain my process through this incase that helps. Now first I should say that either the law has drastically changed since I first went through this or you have been misinformed on the nature of the H1b visa.

I initially came here on a J-1 however this visa requires that you are a temporary resident. It is not possible to file for permanent residence under this category as you then "declare intent" to remain in the US in violation of the terms of the J-1. For this reason many people file for an H-1b through their employer which allows you to work for that employer only (you can have multiple jobs - but you must have an H-1b for each and you cannot change jobs till you have a new H-1b). However, these visas are relatively easy to get, quick to process, and allow "dual intent" ie although they are a temporary work visa and cannot be converted into permanent residence you CAN file for permanent residence while on one without violating that visas terms. For these reasons these visas are very popular.

The only place that 2-3 years comes into it is that the initial H-1b can only be last a maximum of 3 years after which you need a new one which your employer can obtain if he intends to continue employing you (but many employers only file yearly petitions for both the initial and subsequent visas). The H-1b has a maximum of 6 years - beyond 6 years you cannot remain in the US under H-1b except in unusual circumstances (eg you spent significant time abroad during those 6 years in which case you can file to "re-capture" that time as an H-1b extension - but you still have to deal with the 6 year total time limit) or 10 years limit on certain government projects. Thus if an employer really intends to keep you on long-term after the initial 3 year H1-b expires they will normally file a new H-1b and concurrently a permanent resident application in your name as it can take the remaining 3 years the H-1b will be valid to receive the green-card - but note this is not turning the H-1b into a green-card, its a totally unrelated application as far as the INS are concerned and having an H-1b does not guarantee a green-card.

If I were asked if I wanted an H1b visa at an interview should I say yes in spite that I have already and EAD working permit and an asylum application (taking forever) running?

I would imagine the best course would be to work closely with the employer to ensure a legal work visa as they will need to see this evidence anyway. However, as said before I would consult my own lawyer on all such matters as they should have your interests at heart, an employer, naturally, is more concerned with theirs.

In my case I applied for the green card after transferring to H-1b status. I applied under several different categories (EB-1, EB-2a, EB-2b) and took the first one to come through. I think all in all it took me about 5 years processing time, but I had friends who got through in 2. Depending on your country of origin there is also the green-card lottery which can't hurt to enter as long as it doesn't violate current "intent".