OPT to permanent residence questions
Sep 2nd 2005, 7:57 pm
#1
Guest
Posts: n/a
OPT to permanent residence questions
Hi guys,
I have just received my Computer Science M.S. degree from a U.S.
university, together with an OPT work authorization card, valid until
the end of August 2006. I have several questions, which I hope you can
help me with.
I may soon get an employment offer for a System Developer position, but
the job advertisement only mentions a Bachelor's degree in Computer
Science as desired, doesn't explicitly require it. Do you think this is
enough for an EB-3 labor certification? Also, I know I would be eligible
for EB-2, if the job required a Master's degree. The job actually
recommends a Master's degree, but that is in another field, not computer
science. Is there a potential for this job to qualify for EB-2; maybe if
the Master's was required? Also, is it true that System Developer jobs
that require a Master's degree are put to audit in the PERM system and
take a long time to be approved? What kind of proof would an employer
have to show for the need of this requirement?
The other questions concern my fiance's status. He is currently on F1,
doing a Ph.D. If we start an adjustment of status process (assuming that
labor certificiation is successful, and that we have married before
filling the forms), what will happen to his F1 status? If he then used
Advanced parole and EAD, and for some reason the adjustment of status
didn't go through, would he fall back to F1 automatically? Or would he
have any problems finishing his degree?
Thank you all in advance!
I have just received my Computer Science M.S. degree from a U.S.
university, together with an OPT work authorization card, valid until
the end of August 2006. I have several questions, which I hope you can
help me with.
I may soon get an employment offer for a System Developer position, but
the job advertisement only mentions a Bachelor's degree in Computer
Science as desired, doesn't explicitly require it. Do you think this is
enough for an EB-3 labor certification? Also, I know I would be eligible
for EB-2, if the job required a Master's degree. The job actually
recommends a Master's degree, but that is in another field, not computer
science. Is there a potential for this job to qualify for EB-2; maybe if
the Master's was required? Also, is it true that System Developer jobs
that require a Master's degree are put to audit in the PERM system and
take a long time to be approved? What kind of proof would an employer
have to show for the need of this requirement?
The other questions concern my fiance's status. He is currently on F1,
doing a Ph.D. If we start an adjustment of status process (assuming that
labor certificiation is successful, and that we have married before
filling the forms), what will happen to his F1 status? If he then used
Advanced parole and EAD, and for some reason the adjustment of status
didn't go through, would he fall back to F1 automatically? Or would he
have any problems finishing his degree?
Thank you all in advance!
Sep 2nd 2005, 11:16 pm
#2
Guest
Posts: n/a
Re: OPT to permanent residence questions
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Hash: SHA1
Lynna wrote:
> Hi guys,
>
> I have just received my Computer Science M.S. degree from a U.S.
> university, together with an OPT work authorization card, valid until
> the end of August 2006. I have several questions, which I hope you can
> help me with.
>
> I may soon get an employment offer for a System Developer position, but
> the job advertisement only mentions a Bachelor's degree in Computer
> Science as desired, doesn't explicitly require it. Do you think this is
> enough for an EB-3 labor certification?
You may want to ask an attorney about the exact wording of the ad. It could
indeed be a problem. On the other hand, if it said something like
"bachelor's degree or 12 years of experience; we prefer a bachelor's
degree" then you would be OK.
> Also, I know I would be eligible
> for EB-2, if the job required a Master's degree. The job actually
> recommends a Master's degree, but that is in another field, not computer
> science. Is there a potential for this job to qualify for EB-2; maybe if
> the Master's was required?
If the Master's was required, yes. But the ad may need rewording in this
case. It would have to say MS in XXX or a related field. If it is, say,
electrical engineering or some other engineering discipline, it should be
OK. If the field is totally unrelated, say, theology, then your employer
would have to have a very good justification for claiming that your degree
is in "a related field." It may not fly at all, since PERM puts limits on
"unusual requirements."
> Also, is it true that System Developer jobs
> that require a Master's degree are put to audit in the PERM system and
> take a long time to be approved? What kind of proof would an employer
> have to show for the need of this requirement?
I don't know enough about PERM to tell you for sure, but it would not
surprise me at all to see this being an audit case. Proof would involve
evidence that the job is at a particularly advanced level, that the salary
is higher than usual, and that all others working in comparable positions
have Master's degrees.
> The other questions concern my fiance's status. He is currently on F1,
> doing a Ph.D. If we start an adjustment of status process (assuming that
> labor certificiation is successful, and that we have married before
> filling the forms), what will happen to his F1 status?
A couple things: first, you just have to be married before the AOS is
*approved* (although indeed it is a good idea to be married before filing,
so that he could file together with you, and also for additional evidence
that this marriage is not fraudulent).
His F-1 status will end the day you file the AOS, but he will be allowed to
remain in the US, and also to stay in school. He should simply tell the
international student advisor to remove him from the SEVIS system.
> If he then used
> Advanced parole and EAD, and for some reason the adjustment of status
> didn't go through, would he fall back to F1 automatically? Or would he
> have any problems finishing his degree?
If the AOS was denied, I'm not really sure what happens. I think he would
have to leave the US, but may be able to get an F-1 back *if he proves that
he plans to leave the US upon graduation*. You leaving the US but remaining
married may go a long way to help him.
- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.
Please visit my new FAQ at http://www.kkeane.com (always under construction)
My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.
Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Hash: SHA1
Lynna wrote:
> Hi guys,
>
> I have just received my Computer Science M.S. degree from a U.S.
> university, together with an OPT work authorization card, valid until
> the end of August 2006. I have several questions, which I hope you can
> help me with.
>
> I may soon get an employment offer for a System Developer position, but
> the job advertisement only mentions a Bachelor's degree in Computer
> Science as desired, doesn't explicitly require it. Do you think this is
> enough for an EB-3 labor certification?
You may want to ask an attorney about the exact wording of the ad. It could
indeed be a problem. On the other hand, if it said something like
"bachelor's degree or 12 years of experience; we prefer a bachelor's
degree" then you would be OK.
> Also, I know I would be eligible
> for EB-2, if the job required a Master's degree. The job actually
> recommends a Master's degree, but that is in another field, not computer
> science. Is there a potential for this job to qualify for EB-2; maybe if
> the Master's was required?
If the Master's was required, yes. But the ad may need rewording in this
case. It would have to say MS in XXX or a related field. If it is, say,
electrical engineering or some other engineering discipline, it should be
OK. If the field is totally unrelated, say, theology, then your employer
would have to have a very good justification for claiming that your degree
is in "a related field." It may not fly at all, since PERM puts limits on
"unusual requirements."
> Also, is it true that System Developer jobs
> that require a Master's degree are put to audit in the PERM system and
> take a long time to be approved? What kind of proof would an employer
> have to show for the need of this requirement?
I don't know enough about PERM to tell you for sure, but it would not
surprise me at all to see this being an audit case. Proof would involve
evidence that the job is at a particularly advanced level, that the salary
is higher than usual, and that all others working in comparable positions
have Master's degrees.
> The other questions concern my fiance's status. He is currently on F1,
> doing a Ph.D. If we start an adjustment of status process (assuming that
> labor certificiation is successful, and that we have married before
> filling the forms), what will happen to his F1 status?
A couple things: first, you just have to be married before the AOS is
*approved* (although indeed it is a good idea to be married before filing,
so that he could file together with you, and also for additional evidence
that this marriage is not fraudulent).
His F-1 status will end the day you file the AOS, but he will be allowed to
remain in the US, and also to stay in school. He should simply tell the
international student advisor to remove him from the SEVIS system.
> If he then used
> Advanced parole and EAD, and for some reason the adjustment of status
> didn't go through, would he fall back to F1 automatically? Or would he
> have any problems finishing his degree?
If the AOS was denied, I'm not really sure what happens. I think he would
have to leave the US, but may be able to get an F-1 back *if he proves that
he plans to leave the US upon graduation*. You leaving the US but remaining
married may go a long way to help him.
- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.
Please visit my new FAQ at http://www.kkeane.com (always under construction)
My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.
Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Sep 5th 2005, 4:10 pm
#3
Guest
Posts: n/a
Re: OPT to permanent residence questions
Ingo, thank you very much for your detailed answer!
I have two more questions, if you don't mind. Do you have any idea about
what jobs are considered justified in requiring a Master's in Computer
Science? Also, do you expect an EB-3 backlog for Europeans, once EB-3
opens in October?
I have two more questions, if you don't mind. Do you have any idea about
what jobs are considered justified in requiring a Master's in Computer
Science? Also, do you expect an EB-3 backlog for Europeans, once EB-3
opens in October?
Sep 5th 2005, 4:38 pm
#4
Guest
Posts: n/a
Re: OPT to permanent residence questions
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Lynna wrote:
> Ingo, thank you very much for your detailed answer!
> I have two more questions, if you don't mind. Do you have any idea about
> what jobs are considered justified in requiring a Master's in Computer
> Science?
There is no general answer here. You really need to approach it from the
other side: ask about a specific job with a specific job description, and
you may be able to get an unreliable answer.
I can tell you that janitors are usually on the suitable list, as an
example. However, if you are developing software for a janitorial service,
and going out in the field to understand the business is part of your job
description, you might make a case that this specific janitorial work might
require a Master's degree.
> Also, do you expect an EB-3 backlog for Europeans, once EB-3 opens in
> October?
Very difficult to tell for sure, but if I was forced to make a bet, I'd say,
yes. We will find out in less than two weeks, when the new numbers come
out.
- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.
Please visit my new FAQ at http://www.kkeane.com (always under construction)
My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.
Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Lynna wrote:
> Ingo, thank you very much for your detailed answer!
> I have two more questions, if you don't mind. Do you have any idea about
> what jobs are considered justified in requiring a Master's in Computer
> Science?
There is no general answer here. You really need to approach it from the
other side: ask about a specific job with a specific job description, and
you may be able to get an unreliable answer.
I can tell you that janitors are usually on the suitable list, as an
example. However, if you are developing software for a janitorial service,
and going out in the field to understand the business is part of your job
description, you might make a case that this specific janitorial work might
require a Master's degree.
> Also, do you expect an EB-3 backlog for Europeans, once EB-3 opens in
> October?
Very difficult to tell for sure, but if I was forced to make a bet, I'd say,
yes. We will find out in less than two weeks, when the new numbers come
out.
- --
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.
Please visit my new FAQ at http://www.kkeane.com (always under construction)
My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.
Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Sep 6th 2005, 5:07 am
#5
Guest
Posts: n/a
Re: OPT to permanent residence questions
Ingo Pakleppa (see Web site for email) wrote:
> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1
>
> Lynna wrote:
>
>
>>Hi guys,
>>I have just received my Computer Science M.S. degree from a U.S.
>>university, together with an OPT work authorization card, valid until
>>the end of August 2006. I have several questions, which I hope you can
>>help me with.
>>I may soon get an employment offer for a System Developer position, but
>>the job advertisement only mentions a Bachelor's degree in Computer
>>Science as desired, doesn't explicitly require it. Do you think this is
>>enough for an EB-3 labor certification?
>
>
> You may want to ask an attorney about the exact wording of the ad. It could
> indeed be a problem. On the other hand, if it said something like
> "bachelor's degree or 12 years of experience; we prefer a bachelor's
> degree" then you would be OK.
>
>
>>Also, I know I would be eligible
>>for EB-2, if the job required a Master's degree. The job actually
>>recommends a Master's degree, but that is in another field, not computer
>>science. Is there a potential for this job to qualify for EB-2; maybe if
>>the Master's was required?
>
>
> If the Master's was required, yes. But the ad may need rewording in this
> case. It would have to say MS in XXX or a related field. If it is, say,
> electrical engineering or some other engineering discipline, it should be
> OK. If the field is totally unrelated, say, theology, then your employer
> would have to have a very good justification for claiming that your degree
> is in "a related field." It may not fly at all, since PERM puts limits on
> "unusual requirements."
>
>
>>Also, is it true that System Developer jobs
>>that require a Master's degree are put to audit in the PERM system and
>>take a long time to be approved? What kind of proof would an employer
>>have to show for the need of this requirement?
On this point, it would depend on the job description and the amount of
experience required.
One way to address this is to look at the O*NET, which is what the
government will look at as a starting point, and see how much
experience/education the O*NET lists for the position -- then compare
with the employer's requirements. If the employer's requirements do not
exceed the O*NET's requirements, chances of an audit on this point are
reduced.
http://online.onetcenter.org/
>
>
> I don't know enough about PERM to tell you for sure, but it would not
> surprise me at all to see this being an audit case. Proof would involve
> evidence that the job is at a particularly advanced level, that the salary
> is higher than usual, and that all others working in comparable positions
> have Master's degrees.
>
>
>>The other questions concern my fiance's status. He is currently on F1,
>>doing a Ph.D. If we start an adjustment of status process (assuming that
>>labor certificiation is successful, and that we have married before
>>filling the forms), what will happen to his F1 status?
>
>
> A couple things: first, you just have to be married before the AOS is
> *approved* (although indeed it is a good idea to be married before filing,
> so that he could file together with you, and also for additional evidence
> that this marriage is not fraudulent).
>
> His F-1 status will end the day you file the AOS, but he will be allowed to
> remain in the US, and also to stay in school. He should simply tell the
> international student advisor to remove him from the SEVIS system.
>
>
>>If he then used
>>Advanced parole and EAD, and for some reason the adjustment of status
>>didn't go through, would he fall back to F1 automatically? Or would he
>>have any problems finishing his degree?
>
>
> If the AOS was denied, I'm not really sure what happens. I think he would
> have to leave the US, but may be able to get an F-1 back *if he proves that
> he plans to leave the US upon graduation*. You leaving the US but remaining
> married may go a long way to help him.
There would not be an automatic reversion to F-1. He would have to
apply for a change of status from immigrant to nonimmigrant, and satisfy
the government that he no longer has immigrant intent. This could be
difficult.
--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.
================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 URL: http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============
> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1
>
> Lynna wrote:
>
>
>>Hi guys,
>>I have just received my Computer Science M.S. degree from a U.S.
>>university, together with an OPT work authorization card, valid until
>>the end of August 2006. I have several questions, which I hope you can
>>help me with.
>>I may soon get an employment offer for a System Developer position, but
>>the job advertisement only mentions a Bachelor's degree in Computer
>>Science as desired, doesn't explicitly require it. Do you think this is
>>enough for an EB-3 labor certification?
>
>
> You may want to ask an attorney about the exact wording of the ad. It could
> indeed be a problem. On the other hand, if it said something like
> "bachelor's degree or 12 years of experience; we prefer a bachelor's
> degree" then you would be OK.
>
>
>>Also, I know I would be eligible
>>for EB-2, if the job required a Master's degree. The job actually
>>recommends a Master's degree, but that is in another field, not computer
>>science. Is there a potential for this job to qualify for EB-2; maybe if
>>the Master's was required?
>
>
> If the Master's was required, yes. But the ad may need rewording in this
> case. It would have to say MS in XXX or a related field. If it is, say,
> electrical engineering or some other engineering discipline, it should be
> OK. If the field is totally unrelated, say, theology, then your employer
> would have to have a very good justification for claiming that your degree
> is in "a related field." It may not fly at all, since PERM puts limits on
> "unusual requirements."
>
>
>>Also, is it true that System Developer jobs
>>that require a Master's degree are put to audit in the PERM system and
>>take a long time to be approved? What kind of proof would an employer
>>have to show for the need of this requirement?
On this point, it would depend on the job description and the amount of
experience required.
One way to address this is to look at the O*NET, which is what the
government will look at as a starting point, and see how much
experience/education the O*NET lists for the position -- then compare
with the employer's requirements. If the employer's requirements do not
exceed the O*NET's requirements, chances of an audit on this point are
reduced.
http://online.onetcenter.org/
>
>
> I don't know enough about PERM to tell you for sure, but it would not
> surprise me at all to see this being an audit case. Proof would involve
> evidence that the job is at a particularly advanced level, that the salary
> is higher than usual, and that all others working in comparable positions
> have Master's degrees.
>
>
>>The other questions concern my fiance's status. He is currently on F1,
>>doing a Ph.D. If we start an adjustment of status process (assuming that
>>labor certificiation is successful, and that we have married before
>>filling the forms), what will happen to his F1 status?
>
>
> A couple things: first, you just have to be married before the AOS is
> *approved* (although indeed it is a good idea to be married before filing,
> so that he could file together with you, and also for additional evidence
> that this marriage is not fraudulent).
>
> His F-1 status will end the day you file the AOS, but he will be allowed to
> remain in the US, and also to stay in school. He should simply tell the
> international student advisor to remove him from the SEVIS system.
>
>
>>If he then used
>>Advanced parole and EAD, and for some reason the adjustment of status
>>didn't go through, would he fall back to F1 automatically? Or would he
>>have any problems finishing his degree?
>
>
> If the AOS was denied, I'm not really sure what happens. I think he would
> have to leave the US, but may be able to get an F-1 back *if he proves that
> he plans to leave the US upon graduation*. You leaving the US but remaining
> married may go a long way to help him.
There would not be an automatic reversion to F-1. He would have to
apply for a change of status from immigrant to nonimmigrant, and satisfy
the government that he no longer has immigrant intent. This could be
difficult.
--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.
================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 URL: http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============
