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Can The Employee Remain In The United States During The Process?


If the employee is in the United States when the employer files its petition, then the employee would have to have a specific type of work visa or employment authorization in order to remain in the United States during the employer’s petition process and work. The visa that usually allows individuals to stay in the United States and work is called H-1B. If the individual works for the same employer who is petitioning for his or her green card in an H-1B visa status, then the employer would be able to petition for one year H-1B extensions beyond the individual’s 6th year maximum H-1B visa if certain conditions are met such as the time the petition has been pending and if the original PERM case was started before the end of the 5th year on the H-1B visa. This would allow the employee to continue to work for the same employer in one year increments after the sixth year of their H-1B visa. Individuals who do not work for the same employer that’s sponsoring them for the green card are still eligible to stay in the United States, as long as the employer’s petition and the application for a green card was filed simultaneously and an application for employment authorization (not to be confused with H-1B visa) was filed at the same time.

Can An Individual Work While A Petition Is Pending?

The individual may work in the United States if they have an H-1B visa and his or her employer filed for their green card before their fifth year on H-1B visa expired. Some individuals who are in the United States with a work permit (called employment authorization) are eligible to work in the United States while they are waiting for the green card. An employment authorization allows them to work for any employer in the United States; they don’t have to work for the employer that is petitioning for their green card. However, when they do get the green card, they have to work for the employer who petitioned for them.

Can An Individual Travel While Their Petition Is Pending?

An individual can travel while the petition is pending, depending on what status they have. If an individual has an H-1B visa while the petition is pending, then they would need to have a multiple entry H-1B visa in order to come back to the United States after a short travel abroad. Normally, multiple entry visas are given as a stamp in their passport at American embassies abroad. If an individual filed for their green card while they were in legal status in the United States and their visa bulletin priority date was current, then they are eligible to file for an employment authorization and they can legally work in the United States. Also, if they file their application for the green card when their date was current, then they are eligible to apply for a travel document called advance parole. Advance parole is a legal term for the travel document for individuals who are waiting for their green card to be adjudicated. So, they would need that advance parole in order to come back to the United States in a pending green card status after a short travel abroad.

What Happens If An Individual Changes Jobs Or Employers While The Petition Is Pending?

This is one of the most complicated questions in employment-based immigration. There is a law known as AC-21, which a lot of people have heard about. It allows individuals the freedom to switch employers if their employer petitioned for them and the individual’s application for adjustment of status, aka green card, is pending for 180 days .The new employer does not have to file a brand new case for the employee. Individuals can switch employers only after their application for adjustment of status had been pending for 180 days

However, the process is a lot more complicated than that. Individuals should consult with experienced immigration lawyers if they fall into the above mentioned category since there are many complications involved in the AC-21 process.

For more information on Staying In The US During A Pending Petition, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.

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