Can asylees apply for H-1B

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Jameel

Registered Users (C)
Hi. It has been only three days since I came across this mailing list and already I have been benifitted from it. I was about to apply for the renewal of my work permit and after going through some of the mails found that that I don\'t need to. Thanks a lot guys.

I had applied for my I-485 in Dec-98 and obviously am still waiting for it. I have not been called for an interview so far. I got married last year (proxy marriage) to a girl in my home country. After the marriage my wife and I spent a month together in the United Kingdom (she had a British visa and I got a visa on my RED). I have been trying to get a US visa for my wife and have not been successful so far. Now, I am thinking about applying for an H-1B visa. I am an engineer by profession and my company will sponsor me if I ask them to. My only concern is that I might lose my work permit and my green card processing. I talked to many lawyers but no one is clear about this. Most of them said that it can be done but it might involve the risk of losing my asylee status. I am desperately looking for advice from someone who might know anything about this. I feel that I am the only asylee who might be trying to do this... that is why the asylum lawyers don\'t know about it.

Thanks a lot for your help and keep up the good work.
Jam eel
 
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Hi Jack. Thanks a lot for your reply. I had been through the web page that you pointed me to. The problem is that an asylee can apply for derivative asylum for his/her spouse only if the spouse had been "included" in the asylum application. If an asylee gets married "after" being granted asylum, then there does not seem to be a way of sponsoring the spouse other than getting a Green card first and then filing a petition for the spouse....the whole process might take a good 10 years.
 
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Dear Jam eel,

I really sympathize with your predicament. You cannot sponsor your spouse because the marriage took place after the asylum grant. It is also impossible for her to get a tourist visa because the consular officer feels, with justification, that she will not leave once admitted to the country. I guess if she were here, she will have a good chance of winning asylum in her own right!

I guess that there are only two things you can do--and they are both long-shot. You can join Jack and others and write the congressional committees asking the asylees adjustment quotas be increased. You can then file a Form I-130 sooner.

You can also request the INS to grant humanitarian parole to your wife so that she can join you in the U.S. Go to http://www.ins.usdoj.gov/graphics/services/human parole/index.htm for more information. You must understand that this benefit is granted only for very compelling reasons. You should really talk to an experienced attorney.

Good luck
 
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Regarding the H-1 visa option, I just checked some databases. It seems to me that this is a really novel legal question. There is no precedent for it. You will be a guinea pig, more or less, if you go ahead with this.

You need to talk to a very experienced lawyer, not just any lawyer. Find one with national standing.
 
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Hi Jammeel, there is no reason why to believe the answer to your question could be "no". Having a job offer is not among the causals to revoke an asylee status. It is perfectably understandable that an asylee can get a job offer and also apply for residency through the EB process. There are now nearly 30000 asylum cases approved every year and your are not the only one with a job offer. From experience, I have learned that attorneys don\'t always provide consistent answers. Years ago a lawyer told me that asylum and H1-B were not compatible because H1-B was a non immigrant visa. His answer did not convince me, then I wrote a letter to the Miami Herald (there is a column named "Linea de Immigracion" to help people on immigration issues) by attorney Manfred Rosenow and he gave me a completely different and more convincing answer. You should keep consulting attorneys and get a convincing explanation of why there is a risk of losing your asylee status, just for getting a job offer and getting a H1-B visa. There are some obvious restrictions, of course, for example if you are an asylee and get a H1-B visa you cannot use that visa to go to your homecountry; otherwise, you would lose your asylum status. But other than things like that, if there is nothing legislated, how come something that is not written could be considered a fault?
 
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Hi Jameel,

 I am not sure if the INS will allow an asylee to file two I-485 applications under two different categories: one under asylum status and another under EB. If you wish to apply under EB you *may* have to abandon your I-485 app filed under asylee status. These are just my opinions, I am hoping a good attorney will be able to give you more vivid answers.

  If I understand you correctly your employer is offering you a H1-B correct? H1-B will allow you to file dependent visa for your newly wed wife whereas your asylee status does not offer such type of dependency visa for your wife. But H1-B is not a promise that your employer will also sponsor you for GC. It will help you to ask your employer how soon they can sponsor you for GreenCard applicaion after giving you H1-B visa.
  Please confirm this with an attorney, but most EB I-485 applicants get their greencard in 1 or 2 years. Whereas the waiting time for asylum based I-485 can vary from 3 to 5 years. To my understanding you have already waited 3 years on your asylum based I-485 and if I were to express my opinion it would be such a waste to abandon all that waiting time.
    Recently an asylee testified infront of the Senate to increase the quota on number of asylee greencard approvals per year. He pointed out the same dielema you are facing now: asylees cannot sponsor dependent visa to their spouse whom they married after receiving asylum approval.

   I can understand why attorneys cannot give you clear and objectiv answers to your problem. Because under your asylee status you *may* be only one or two years away from receiving your greencard, but you cannot bring your wife to the US in the mean time. If you change your status to H1-B you can bring your wife as a dependent but you will have to file your EB I-485 from beginning again. You are like a man who is standing at the intersection point of a cross road and not sure which passage to take.

  I will not offer you advise on which path to take because INS processing times, policies change from time to time. But I would like to suggest a third option: which is to write to your local Congressman/woman (visit the office if you can get the opportunity) and ask to allow your wife to join you in the US. Some sympathetic politicians have helped asylees in similar situations before. I know it is not the most certain way ,but it\'s the best out of the worst.

I hope you and your wife unite soon.
 
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The fourth option will be to bring your wife under student visa, etc. After you are adjusted as a LPR you can change her status as well. But then again you will also have to take other factors in to consideration such as timing, conveniences.
 
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Thanks again Jack. I really appreciate you taking the time to explain all the options that are open to me.
My company will sponsor my GC if I ask them to but it will have to be under EB3 category and that can take upto 3 years. I would not have minded waiting for 3 years for my GC (which I will probably have to wait for anyways because of the asylee GC limitation) but my concern is my WORK PERMIT. If I lose that then I will be at the mercy of my employer and keeping in view the fact that the job market is going from bad to worse, if I get laid off before getting my GC, I will be left high and dry.
You mentioned that if I bring my wife over on a student\'s visa, I can then later on, get her status changed when I apply for LPR. How does that work? Do I have to file a petition for that after I get my Green Card.

Thanks,
Jameel
 
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Jameel,
Asylees can now apply for Social Security Card with no employment restriction.

 I\'m not suggesting anything, but once you got a unrestricted SSC I don\'t think they will take it away from you again :)

 Inquire your local Community Colleges, Universties etc for student visa for your wife. To my knowledge Comminuty Colleges doesn\'t demand alot of good academic credntials etc, so it will be easier to get student visa approval.
  Student visa in one way you can bring your wife to the US without you changing your immigration status.
 
 
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Thanks. I already applied for my unrestricted SSC ....thanks to the info I received on this mailing list.
 
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Hi Jameel,

 You will need to check with a lawyer on this one. All I know is that once you are adjusted to PR status your wife will also be eligible to apply for PR status based on marriage to you.
  After you become a PR you will be like anyother Greencard holder.
 
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That\'s right. I have not considered the possibility that your wife (i\'m guessing that since you two are lawfully married "wife" is the proper term now) will have to mention in her visa application form that she is married to an asylee in the US. That can have significant impact on the consul\'s decision on her visa application. And of course lying in the application form can also have negative impacts in the later immigration matters.

  Is she in the UK right now? Or in her native country? Sometimes visa applicants have to go back to their homecountry to apply for student/visitor visa, but certain nationalities are exempt from that rule.

  This case is alittle more complicated than what I have thought originally. What you should do is write all these questions down on a piece of paper, get a list of lawyers phone numbers and shop around. I would not talk to the lawyers who ask for your credit card number as soon as they pick up the phone.

 Actually it would be the best if you write your questions down (state them clearly) and fax them to the lawyers. I know phone conversations can sometimes lead to miscommunication due to accent variations etc.

  It would be the best if the INS will approve her visa on humanatarian parole. I know alot of asylees are trying to bring their immediate relatives through this channel , so there could be a long waiting list. But if you want faster processing you can make appeal to your Congressman/woman, US Attorney General, etc.
 
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