can greencard be applied for employment category while in india

[newgc]

Hi Jim and others

i am from india and will be working until sept in europe. I have a valid h1 approval (not stamped).

my doubts are

1) i have b1 visa valid until 10 years. can i come on that and start working without getting my h1 stamped in india.

2) Can the employer start my gc process though i am not yet in the u.s and working.

Thanks in advance.

 

[Njie]

Start working on H1 immediately

Consider the following:

1. H1 meter is running

2. You are in Europe, make transition from B1 to H1. Get H1 stamp in Europe itself.

3. Because generally employers take 3 to 6 months to start Labor Cert. etc. there is some 2-3 yr window for getting GC. (Conditions can change suddenly)

4. B1 for 10 year should be valid if H1 does not work out

5. Employer has to justify your work outside of US and GC process can continue in your absence.

6. When time comes if you are still in Europe you can opt for consular processing.

Hope this helps. If anyone has other suggestions pl add.

 

[Jim Mills]

JoeF is correct on all counts

Although it\'s probably possible to begin the LC with you outside the US. There may be questions but they probably will not be insurmountable.

Jim

James D. Mills
Attorney at Law
jdmills@justice.com
732-644-5702

 

[Njie]

No Title

> Actually, no. Only time spent in the US in H1 status counts towards the H1 limit. And if the person didn\'t even enter as H1 yet, it the "meter" didn\'t even start.

You have a point but I was going by a case where a US MNC is having operations world wide and are sending a programmer from Singapore to work for the company for it\'s operations in Europe on H1-B. So in this case I am assuming that the H1 meter would be running as soon as the employee has started working for the company sponsoring the H1. Physical presence in US could not be a hard and fast rule.

> As soon as an I-140 is filed, the person has indicated immigration intent, and that is incompatible with a B1. So the person would most likely not be able to enter the US on a B1 visa.

True the intent changes from B1 To H1 but there are so many variables in the whole equation. The person might want to switch back to B1 before filing for I-140. My views are purely short term as the participant indicated September of this year.

> This in fact makes the LC look suspicious. After all, in the LC, the employer states that they have an opening in the US that only you can fill. If you are working abroad, it looks as if the opening does not really exist.

Again the US corp can say that no one in their US offices is willing to work in say Italy and we need to sponsor this Singapore resident for H1.

> You should discuss this with an immigration lawyer, to avoid the pitfalls.

Eventually this is the best course of action, due to the complex nature of this case.

 

[Njie]

You have valid points

> The US company can send the employee where they want, but if the employee is working abroad, he is not in H1 status. Being in a US status is per definition only possible while in the US.

Some more details. The Singapore resident had just graduated and applied for work so changed from F1 to H1.

> Usually, most people think the H1 "meter" continues to tick when a person is abroad on vacation or business trips, but lawyers have successfully recaptured the time spent abroad.

My take was that if a Co. A sponsors you for H1 then when you start working for them the meter runs. Also a new meter would be running if the H1 sponsor is Co. B. However you are correct if the H1 employee is in US and goes outside and comes back. I dont know the treatment for those outside US.

> Besides, the company can *not* send anybody to Europe on H1. They have to get the proper work authorization for the European country. It doesn\'t matter what US visa that person has.

Work authorisation for Italy too was done because the US Co. has operations there as well.

> The immigration intent issue does not result from the switch from B1 to H1, but from the filing of the I-140. The H1, while still a *non- immigrant* visa, explicitly *allows" immigration intent, while the B1 does not. Going back to a B1 is a bad idea, because that prevents the person to enter the US during the time the application is pending.

True. Going back to B1 is worst case scenario if there are some unforeseeable dealys in getting H1 to GC.

> For your third point, again, what does this have to do with the H1? The person would need work authorization from the Italian government, not from the US government.

Sorry that was for Labor Cert. not H1 per se.