San Francisco Immigration Lawyer Q & A: Can my employer sponsor me for a green card while I am in F-1 OPT status?

Q: I am in F-1 OPT [optional practical training] status and my employer wants to apply for green card. I graduated with a Master of Science in December 2010 and started my OPT in February 2011. Currently I am working for a leading IT company on a contract basis from March 2011 - present. I am planning to apply for an H-1B visa for April 2012 quota. For now, my employer wants start green card process while I am in F-1OPT status. My questions:

1. Am I eligible to start green card when I am in OPT status?

MR: Yes, the employment based green card process can start while you are in F-1 [student] status. Notably, your green card case is based on a prospective offer of employment. In other words, you need only be employed in the prospective position “upon issuance of the green card” – which means when your I-485 [adjustment of status] application is approved. Depending on the nature of your case, this might not occur for years.

2. If eligible, will I be considered as potential immigrant because I am applying in OPT (without H1) and will it spoil my future visa processing?

MR: Yes, you would be considered a potential immigrant, which is why companies often have a policy of changing F-1s and TNs [another temporary intent visa classification] to H-1Bs BEFORE starting the green card process. However, this change is not required for eligibility to start a green card case, and you need to consider in what context the issue of intent becomes relevant.

Primarily, immigrant intent might harm you if you are seeking an extension of your F-1 status, or if you are seeking entry to the US in F-1 status. In either of these scenarios USCIS/CBP might refuse the extension/entry based on determination you have immigrant intent [and therefore do not meet the temporary intent requirement for being a student].

Assuming you are not seeking an extension or plan to travel and return in F status, you should have no trouble avoiding either of this potential pitfalls. NOTE: Once you secure H-1B status on October 1, 2011, the next time you leave the US you will likely need to secure an H-1B visa stamp at a US consulate abroad. The H-1B does not require temporary intent, so a pending green card matter should not have a negative impact on your H-1B visa stamp application.

The other common scenario where immigrant intent might harm an F-1 is when the F-1 files a green card application shortly after entering the US in F-1 status. This might lead to a presumption of fraud. Specifically, that the F-1 never intended to study in the US; rather, just wanted to enter for the purpose of filing a green card application inside the US.

Assuming you started F-1 status year(s) ago, attended and finished school, this presumption should not apply to you.

3. If not eligible then what is the edibility criteria and when to start the process?

MR: As discussed above, you are eligible to start. To be clear, someone does not have to be in H-1B status to start a green card case. This is just the most common scenario. Eligibility criteria for employment based green card can be reviewed here: http://www.ryvinlaw.com/services/employment-based-green-cards/

4. Can you please brief me about the green card process for my situation.

MR: I would need to see your resume to review your best available green card options. You should also note that for most green card categories, both you and position offered must qualify. For example, with a Master’s degree, you have the qualifications for EB-2, but if the job offered does not require someone with a Master’s degree [or equivalent] then you cannot file in the EB-2 category.

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Please let me know if you require clarification. Sounds like you have some good options ahead of you and I wish you the best of luck!

Sincerely,

Michael Ryvin, Partner
Rvyin Wallace Group
michael@ryvinlaw.com
1-415-765-0679