Blog Post

This post specifically discusses the best legal paths to permanent residency for H-1B visa holders, as well as F-1/F-2 visa holders, and the process of transitioning from an H-1B/F-1/F-2 into a permanent resident (Green Card) holder in the United States.

An H-1B visa holder is a qualified nonimmigrant foreign national who is NOT a lawful permanent resident (i.e., a Green Card holder), but is allowed to reside in the United States and is permitted to perform services in a specialty occupation. As a matter of law, the H-1B visa holder can only work for the sponsoring employer (save for a concurrent H1-B petition); otherwise, the visa will be revoked. The H-1B visa holder can stay in the United States for up to six years (first, an initial period of three years, followed by an extension for an additional three years). Pursuant to the American Competitiveness in the Twenty-First Century Act [specifically sections 104(c) and 106(a); and 8 CFR 214.2(h)(13)(iii)(D) and (E)], some H-1B visa holders can extend their visa beyond the six-year period.

Though the H-1B visa is a non-immigrant visa, the H-1B visa holder can have dual intent [see INA 214(h)], meaning that the H-1B visa holder (a non-immigrant) can apply for a Green Card (immigrant visa) through different paths.

On the other hand, an F-1 visa is specifically designed for international students studying at certified and accredited American universities and colleges. Usually, the F-1 visa is issued for up to five (5) years, depending on the duration of the program; practically speaking, the F-1 visa holder can reside in the United States for the duration of the study as highlighted on the I-120 form [(9 FAM 402.5-5(B)]. Post-graduation, the Optional Practical Training (OPT) program allows the F-1 visa holder to remain in the US for 12 months.

Some students — specifically those students in the fields of STEM [Science, Technology, Engineering and Mathematics] who have completed their STEM studies and an initial post-completion OPT — are eligible for an additional 24-month OPT extension that is directly related to their field of study (STEM OPT). Please make sure that your field of study is part of the government-approved list of STEM fields [9 FAM 402.5-5(N)(6)]. See the U.S. Department of Homeland Security STEM-designated degree program list. A beneficiary may possess a bachelor’s, or master’s or doctoral degree.

Separately, an F-2 visa is a type of non-immigrant visa that allows dependents (spouse and unmarried minor children – under age 21) of F-1 student visa holders to move to, and reside legally in, the United States. The validity of the F-2 visa is dependent on the validity of the F-1 visa.

All of the above-mentioned visas are non-immigrant visas, meaning that there are statutory and regulatory restrictions that limit your activities in the United States. In other words, you are entering the United States for a specific purpose, whether to study for a certain period of time, or to temporarily perform certain services.

On the other hand, immigrant visas are specifically issued to foreign nationals who intend to live and work permanently in the United States. They are granted permanent residency (Green Cards). For the rest of this article, I will focus on the legal paths to becoming a permanent resident (Green Card holder) for the above-mentioned non-immigrant visas.

For those who are already in the United States (H-1B or/and F-1/F-2 visa holders), you should consider this legal permanent residency option: employment-based (EB) visa.

Depending on your credentials, you may be qualified under EB-1A, which is for people with extraordinary ability, or EB-2 (National Interest Waiver – NIW), which is for people with advanced degrees or exceptional ability. If you have a first degree only, with five (years) of progressive experience, that is equivalent to a master’s degree. If you are currently pursuing your master’s degree in the United States, then consider this option, but you must have had 5 years of progressive in the field (you are using the post-baccalaureate experience here, for you can’t use your ongoing master’s program to qualify: the degree must have been earned at the time of filing).

Contrastingly, if you are currently enrolled in a doctoral program, you may be eligible, for you would have earned an advanced degree (master’s) at the time of filing, and your current academic pursuit will be used to support another element of the controlling law: Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), overruling Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

If you are on OPT/STEM OPT (post-baccalaureate), you should consider these options, too.

Furthermore, if you are one of those H-1B visa holders — and even if your current employer is filing permanent employment (PERM) labor certification, also known as EB-2 PERM, which is a laborious process that goes through the U.S. Department of Labor — you can still file EB-2 NIW or EB-1A. Yes, concurrent filings are allowed.

Why should you consider EB-2 (NIW) or EB-1A? With EB-2 PERM filed by your current employer, you have to worry about transferring your EB-2 petition from your old employer to a new employer. With your H-1B visa, too, your destiny is tied to your current employer, save for certain exceptions. A lot of uncertainties can put your career on hold.

With EB-2 (NIW)/EB-1A, however, you have the liberty to work for any employers. With EB-2-(NIW)/EB-1A, you do not need an employer to sponsor you, and you do not need a job offer (of course, your current employment will show that you are well positioned to advance the proposed endeavor). Both applicants can self-petition. Also, with EB-2 (NIW), you do not need a lengthy labor certification, which my law firm also does, but you must satisfy a three-prong test formulated in the above-cited precedent case.

Finally, every case is unique. There is no one-size-fits-all strategy. My current clients are uniquely different. I create a uniquely tailored strategy for each client, applying the law to his/her unique profile, resulting in a petition memorandum that addresses all the nuances. Still, depending on your profile, I find the following evidence, while not outcome determinative, persuasive: recommendation letters, citations, publications, media reports, presentations (conferences and seminars), peer reviews, past achievements, etc. Again, these are not statutory requirements; so, for a free (personalized) eligibility evaluation, reach out to my law firm.

And you can count on my law firm to represent you diligently. I bring the same level of agility, problem-solving skills, and creativity, which I used to solve complex problems in the business world, to my firm. To the extent possible under the law, I will provide you with unparalleled legal services.

Wherever you are on your immigration journey, my law firm will be happy to represent you.

For a free (100%) case evaluation, contact the attorney-in-charge of The Law Office of Akintunde F Adeyemo, PLLC:

Akintunde F. Adeyemo, Esq.

Attorney, Counselor & Solicitor

734-318-7053 (Call, Text, Including WhatsApp)

Website: www.akinalaw.com

Email address: info@akinalaw.com

Please include your updated resume/CV in the email. If you do not have an updated resume, indicate whether you have advanced degrees (or a first degree, with 5 years of progressive post-baccalaureate work in the same field).

The information in this article is for general information purposes only. Nothing in this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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