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After 15 years of helping physicians practice in the United States, Badmus Law Firm has observed numerous immigration missteps that could have been avoided with the right information and knowledge. This year, each issue of our newsletter will discuss a critical immigration mistake and how to avoid it.

 

MISTAKE #1  - Starting the green card process too late. A green card opens the door to many personal and professional opportunities and secures your ability to live and work in the United States indefinitely.  However, the process of obtaining green card status can take several years.  It all depends upon the government's resources and ability to process applications and the availability of immigrant visas (green card) in any given year.   Here are three good reasons to apply now for your green card:

 

1.   Immigration rules change constantly so delay in applying when you are eligible could cause you to lose the right to apply later because the laws have changed. 

2.   Government processing times can change for the worse.  For example, the PERM labor certification processing time was once 3 or 4 months.  Today, it appears 8 to 12 months are the norm. If you wait to get into the green card application system, you are more likely to experience a longer processing time because of the growing queue.

3.  There are a limited number of green cards issued each year, especially those based upon employment.   Each year, the USCIS issues up to 140,000 employment-based green cards.  These visas are issued based upon a system that establishes priorities for workers depending upon their skill level. To establish the order of priority among workers in the same class, the USCIS uses a "priority date."  For workers subject to the labor certification requirement, the priority date is the date the labor certification was filed.  For all other workers, it is the filing date of the Form I-140.  Persons with earlier priority dates have preference over those with later dates.  Each month, the U.S. State Department prints a Visa Bulletin.  This bulletin lists the eligible priority dates for each class of employment-based visa. To link to the current visa bulletin,click here.  The backlogs with respect to immigrants from certain countries occur because of the per-country annual limits on green cards.  The annual limit for any one country is 7% of the total number of green cards issued in any one year (approximately 50,000).  The total number of immigrants seeking green cards from countries such as India, Mexico and the Philippines is usually several times that number.  Note that a worker's place of birth determines their country of chargeability (which per-country limits apply). 

So always start the immigration ("green card") process as soon as you have a qualifying job.  For J-1 waiver physicians, it is a mistake to assume that you must complete the J-1 waiver 3 years of service requirement before starting the green card process.  Start as soon as you and/or your employer is able.

Safety - if your I-485 application is denied for any reason (even government mistakes), you will have no legal status and can be deported unless you have have nonimmigrant status like H-1B. Also, if you have H-1B status, you may be eligible to re-file your I-485 application. Without it, you might not.

Automatic Extension - even if you file your H-1B extension request the day before your H-1B expires, you will remain in H-1B status and continue to work without interruption while your extension request is pending. This is not true with the EAD. If your EAD renewal is not approved before your current EAD expires, you are not authorized to work until your EAD renewal is approved. Also, you have a small window of time to file the EAD renewal. To be safe, you must file 90 to 120 days before your EAD expires (you cannot file earlier than 120 days before expiration).

Family - if your spouse or child did not file or cannot file for adjustment yet, then maintaining H-1B status may be necessary to maintain status for your dependent spouse or child. Also, if you marry or plan to marry someone who needs a visa, the H-4 visa based upon your H-1B status is the fastest way for him or her to join you in the U.S.

There are many factors to consider in determining the best immigration status for you while your green card application is pending. Even if you decide not to extend your H-1B status or you travel using AP rather than an H-1B visa, you may still have an option of reinstating your H-1B status if necessary. Always consult with an immigration attorney when considering any changes to your immigration status.

This information is provided as an educational service by Badmus Law Firm.  If you have questions about immigration rules that affect you, you are invited to call and schedule a telephone consultation with one of attorneys. Call 469-916-7900 ext. 2 or email ppowell@badmuslaw.com.

 

 

Physicians working with H-1B visas need to be aware that the USCIS is conducting approximately 25,000 random worksite visits to verify that the H-1B employee is actually employed with the sponsoring employer as described in the H-1B petition.  Many of our clients employed by both large and small employers have already experienced these unannounced visits.  It's important that you and your employer are ready for these visits which usually include an interview with your employer's representative, an interview with you, and a tour of the work facility.  Here are five steps you should take to prepare for and respond to a surprise visit to your workplace:

 

1.         Review the H-1B petition filed by your employer to make sure your work locations, title, job duties, and wages are listed correctly. If not, contact your employer and lawyer immediately for further advice.

 

2.         Have your attorney's number available so you can call her immediately, before you begin your interview with the investigator.  You are entitled to have your attorney present by phone or in person.

 

3.         If you are a hospitalist or work at a location not controlled by your employer, contact the hospital or facility representative to let them know about the possibility of a site visit and advise them to contact you and your employer immediately in case of a surprise visit.

 

4.         Ask your employer to contact the attorney who prepared the H-1B petition to help with a self-audit of their H-1B compliance files which are required for all employers.

 

5.         Schedule a mock interview with your employer and attorney to prepare for a possible site visit so you can feel more comfortable if it happens.

 

If you would like help for you or your employer to prepare for a site visit, you are invited to call us at 469-916-7900 or email ppowell@badmuslaw.com.

 

 

The Department of State released the Visa Bulletin for the month of February 2010.  

 

Good news for physicians born in China mainland. In February, the priority date moves forward to May 22, 2005!!!! Therefore, you will probably receive your "green card" in May, if your adjustment of status (form I-485) application is pending and your immigrant petition (Labor Certification and or form I-140) was filed on or before May 21, 2005.  If you have not been able to file for adjustment of status (form I-485), but your immigrant petition (Labor Certification and or form I-140) was filed on or before May 21, 2005, in May you will be able to file for adjustment of status (form I-485).