Tricky Situation; on O1 Visa, petitioning for Green Card, might be changing jobs

G

Goldabar

Registered Users (C)
So I'm in a pretty unique situation, wondering if anyone has any advice or has had a similar experience. My "stats":

-I'm currently on an O1 Visa, sponsored by my employer, and am working in the US
-I'm also just about to submit my petition for a Green Card, but haven't done so yet (am married to a US Citizen, have been for 3 years)
-And now the complication; I'm looking at switching jobs, over to a new employer, also in the US. I actually once held a Visa with this company and used to work with them; it was an L1, and it expired in 2009

So what I'm wondering is; if I was to transfer over to the new company, what is the best way to go about that, Visa-wise?

-Should I go ahead and submit the petition for my Green Card? I'll technically be petitioning for a change of status seeing as I already have a Visa. What happens to that submission if I get the new job?
-Should I hold off an going for the Green Card? Can the new company transfer my O1 over to their side? Is that even possible?
-Are there other options?

Any advice will be massively appreciated, thanks in advance (and more thanks on delivery)
 
You've been married to a USC for 3 years and you're still here on a non-immigrant visa? Why?

Why have you not adjusted as a spouse of a USC already? Have you done ANY reseach into this issue before this minute?

Spouse files I-130 alomng with your I-485, I-131, I-765 (for category (c)(9)). Later spouse files I-864 but with your income your maybe can help out with an I-864W (read the instructions carefully). Once you get an EAD based on your pending adjustment, you don't need to maintain nonimmigrant status anymore. All an IR of a USC needs is a lawful entry (they don't ever need to maintain it and they can still file for adjustment). YOU will have no problem in that regard. AND based on the length of your marriage, you skip over conditional status and go straight to a 10 year card.

Do you have some reason for proceeding in the fashion you have described that is not evident in your post.
 
Yes, I have done research before this minute, thanks. I understand how to go about getting a Green Card, after a lot of research and time spent putting together the documentation. The submission is just about ready to go. It's not exactly easy or straightforward stuff if you're doing it on your own, which is why I haven't done it until this time...

And yes, I've been married 3 years, but have only been in the US for 1 of those years. Until recently (just over a year ago) it wasn't clear that we'd come to live in the US.

I'm having some trouble understanding your advice, but let me see if I've got it right; basically, once I've petitioned for the green card, all I need is lawful entry into the country to be able to work somewhere new, because at that point I'm no longer classified as nonimmigrant worker? Do I already have lawful entry, as someone on an O1?

I don't have any particular reason for proceeding the way that I am, apart from the fact that the laws are incredibly hard to parse and so that's why I'm asking for advice :)
 
An easier question people might be able to help with is:

Is it possible to transfer an O1 Visa to a new employer/sponsor?
 
Goldabar said:
Yes, I have done research before this minute, thanks. I understand how to go about getting a Green Card, after a lot of research and time spent putting together the documentation. The submission is just about ready to go. It's not exactly easy or straightforward stuff if you're doing it on your own, which is why I haven't done it until this time...

And yes, I've been married 3 years, but have only been in the US for 1 of those years. Until recently (just over a year ago) it wasn't clear that we'd come to live in the US.

I'm having some trouble understanding your advice, but let me see if I've got it right; basically, once I've petitioned for the green card, all I need is lawful entry into the country to be able to work somewhere new, because at that point I'm no longer classified as nonimmigrant worker? Do I already have lawful entry, as someone on an O1?

I don't have any particular reason for proceeding the way that I am, apart from the fact that the laws are incredibly hard to parse and so that's why I'm asking for advice :)
Click to expand...

Read INA 245(a) http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act

As an Immediate Relative (IR) of a USC (IR=Spouse, Parent or Child--unmarried, under 21) merely needs:
1. a lawful entry (admission or parole) {you submit a copy of your I-94 showing admission as O-1}
2. a petition giving them an immediately available visa (she submits an I-130 on your behalf) (she must submit I-864 even with zero income)
3. be admissible as an immigrant (they already let you in and hopefully you have not gone on a crime spree)
4. submit an application package (I-485, I-765 (for employment authorization document EAD), I-131 (for advance parole--do not depart the U.S. without AP or the adjustment is considered abandonded and is denied)

submit all required evidence with each form ALL together at one time according to the I-485 filing directions, with all current fees.

The EAD and AP are "interim benefits" issued first (they say it can take up to 3 months to get that stuff but it is usually less). the EAD will be (c)(9), see below.

8 CFR 274a.12
(c)
(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence;

So, if your O-1 remains in force while waiting for the EAD to arrive, your may continue to work 100% legally.

If your O-1 expires after filing the adjustment pack but before the EAD arrives, that's OK too because you remain eligible for adjustment anyway, if you do not accrue 180 days or more of unauthorized employment (those are actual work days NOT just a 6 month period).
 
All makes sense. I think I understand how it works now.

If I do want to move to a new job, I have 2 options:

Submit for my green card and then await the EAD before moving to a new employer

OR

Have the new employer file for a fresh O1 Visa

I can't transfer my current O1 over to them as a sponsor.

Thanks for your detail help BigJoe, I feel much better equipped to sort through all of this and should have my petition ready to go this week. Thanks!
 
As an adjustment applicant you file for an EAD in category (c)(9).

8 CFR § 274a.12 Classes of aliens authorized to accept employment.

(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending.

(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence;
 
BigJoe, just double confirming one piece: "...an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application."

Does this mean that as soon as I've applied for my Green Card (which is a K-3, right?) and filed my i-765 in category (c)(9) and gotten confirmation of application (I'm submitting g-1145 so that I get confirmation) I'll then have permission to be employed anywhere in the US, without restriction (ie. I can leave the employer that sponsored my O1 is I want to). Does my current O1 visa count as me being "granted employment authorization prior to the filing of the adjustment application"?
 
As the spouse of a USC whose marriage has already lasted over 2 years your will receive a full 10 year greencard issued with code IR-6 (which is the adjustment code equivalent to the Immigrant Visa issued with code IR-1). K-visas are non-immigrant fiances and spouses of a USC or children of USC (or of their fiance or spouse).

INA: ACT 274A - UNLAWFUL EMPLOYMENT OF ALIENS

(h) Miscellaneous Provisions.-

(1) Documentation.-In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2) Preemption.-The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

This means that if you already have an EAD or a work authorized visa (O-1) you may continue to work on the previously issued EAD or visa until you get your new EAD. However, when you look at INA 245(c) as the spouse of a USC, you are OK to accept employment other than what was previously authorized as soon as you have properly filed the I-485 [as soon as you get the e-notification you may work for someone other than the O-1 employer].

INA 245

(c) Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)(C) ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B); (7) any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.
 
Excellent!

I'm guessing that filing for the I-485 can take wildly different amounts of time, though I bet it goes faster if I file it a te same time as I-130. If you do have an idea of how long it'll take for my I-485 to have been filed, let me know.

Thanks again for the help!
 
Hey, this seems like a good place to start.

My wife has an O1 visa, she is a Canadian national. I am on an O3 visa. I am a British national.

We haven't had these visas very long (less than a month) and her employer has just dropped a bombshell. Letting her go straight away, right before Christmas. (in case it matters or you are curious we got everything sorted, the company was bought out and last in is first out)

However she is good at what she does and has people ready to take her on in the New Year. What is the process for changing employer on an O1?

Timeframe, procedure and cost would be awesome!
 
ifanov said:
Hey, this seems like a good place to start.

My wife has an O1 visa, she is a Canadian national. I am on an O3 visa. I am a British national.

We haven't had these visas very long (less than a month) and her employer has just dropped a bombshell. Letting her go straight away, right before Christmas. (in case it matters or you are curious we got everything sorted, the company was bought out and last in is first out)

However she is good at what she does and has people ready to take her on in the New Year. What is the process for changing employer on an O1?

Timeframe, procedure and cost would be awesome!
Click to expand...

The new employer files an I-129 petition for a change of status (you will need an I-539 filed concurrently with hers new employer's I-129). Find the forms, and O-1 specific information regarding change of status at www.uscis.gov
 
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