Orthodude16

So I'm presently coming to the end of my masters program in the US - I am training to be an orthodontist and am on an f1 visa.
I have applied for OPT and put a start date for late August.
The university where I have done my masters program would like me to stay on and are willing to offer me a 1 year contract at this stage. I need to some advice on which way to go from here. Ultimately my goal is to work in private practice rather than for a university but this could be a stop gap whilst I am getting my state license to practice. The university would allow me to either work on my OPT or apply for a H1b visa (they are exempt from then visa cap) or possibly even sponsor me for the green card.
I'm unsure which way to go.

How long does it take for someone to get permanent residency with UK citizenship from birth. I have been told. I will be eligible for the EB2 with national interest waiver application. Is the 1 year contract a problem for being able to do this as if it takes longer than a year what would happen if they decide not to extend my visa?

If I go for the H1b visa how easy is it to change employers mid way through the year and go to an employer in private practice who is subject to the visa cap?

Option three I guess would be to stay on OPT with the university and as soon as my state license is processed (3 or 4 months) then have an employer in private practice apply for a H1b but will be subject to the cap and I don't know what my chances will be for being selected l.

Any advice appreciated on how to proceed as Im a little lost with the whole process.

Thanks

jxv73

If you apply for an EB2 with National Interest Waiver, you do not need a sponsorship from the university. In effect you act as your own petitioner (although you could use the university as a petitioner if you wanted). For a "normal" EB2 (that is, one without a waiver) the job offer must be permanent.
OPT can help you start working immediately, but there will be issues once an I-485 for the green card is submitted. Mainly, it could be argued that once you apply to become a PR you no longer maintain F-1 status. In theory you could stop using the OPT and continue working with the EAD from a pending adjustment applicant, but these EADs are taking months to process. A switch to H1B from OPT avoids having gaps in work authorization. Also the H1B allows you travel freely without the need to have AP approved while the I-485 is pending.

Orthodude16

Thank you. So it sounds as if H1b may be a good option. I have already applied for the OPT and put a start date as late August. I have not yet received my OPT (I applied early April). Is it possible for the school to apply for H1b for me right now even with the OPT application pending? If I do this do I lose the right to have 12 months OPT in the future?

jxv73

Yes they can apply now even with a pending OPT (and you can apply for the EB2 as well, at least the first stage - the I-140). If you switch from OPT to H1B then I don't believe you can switch back to OPT.

Steve_

No particular reason why they can't do both, I-129 and an I-140. Ask them.

If the AOS is to an immigrant category which has visa numbers immediately available, then you're considered to be "in status" until the AOS is processed. All EB categories are currently current for British citizens, so no problem there.

There's a good question on H-1B portability. IIRC they'd have to file an I-129 subject to the quota, so in other words, they'd likely not get it approved.

By far the best option would be to get the university to apply for LPR status for you from the sounds of it, but then you have to work for them. Just been having this discussion in another thread so I'll save myself a lot of typing and point you here: https://www.immihelp.com/greencard/e...-employer.html

I get the impression you would earn more in private practice, doesn't sound practical based on what you've said.

Orthodude16

So how would it work if I get my H1b now with the university and start working. Say within 6 months I find an employer willing to sponsor me for the green card via Eb2 route. Can I just put in an application to change status and start work with the new employer or do I have to wait for it to be approved? How long may this take?
Thanks

jxv73

New employer would also have to sponsor an H-1. Steve is of the position that you have to work for 2 years with your employer after GC approval but others say only 6 months (and yet others argue you can in theory leave the next day if a new job offer appears). The key issue is whether you misrepresented that you were going to work for the university. The best way of avoiding trouble is to not have any formal interviews or contracts signed with other employers until after the GC has been approved

fbf2006

The new employer will have to file the H-1 for you and since it'll be a private employer, it will be subject to the cap. I will assume that in this scenario, you will have missed the application date of April 1st and so the cap would already be reached. Not to mention that it's a lottery anyway.

I say start working on the OPT and have the university file both the I-129 (H-1) and I-140 or just the H-1 and then file the EB 2 NIW yourself. If you really don't want to work for the university, then just file the EB2 NIW yourself, while using the OPT at the university. I'm not sure where people get that you can't go from F-1 to a green card. My siblings definitely did so. They were both F1 students when they started their family based I-485 process.

You could also get the H1 with the university like you suggested and when you find an employer have them start the ADJUSTMENT (not change) of status process by filing the I-140 via the EB2 route from the beginning. When they file the EB2, also have them request EAD and AP. Then once you receive the EAD, you can start working with them and your status will be I-485 pending.

Noorah101

Hi fbf,

Your siblings already had a path to a green card through family. There's no direct path from F-1 to green card.

Rene

fbf2006

I'm not talking about a direct path though. These are all stand alone applications. If you're on an F1 and find an employer willing to sponsor you for a green card. That can be done. You don't have to be on an H1 or L1 first to go through the green card route, as long as you're already on a valid visa status. There's no direct path from an H1 or LI as the employers don't have to start the green card process anyway.

jxv73

Were your siblings working full time? The issue for the OP is that a future USCIS adjudicator could consider the period of time between the date when he applies for the I-485 and the date when he receives an EAD,as a unauthorized employment, complicating his AOS.

Please see the definiton of F-1 status in the INA

(F) (i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study

And remember that those on OPT must maintain F-1 status, including the legal fiction that they have a residence n a foreign country with no intention of abandoning it.

Further the OP 's AOS application would be considered abandoned if he leaves the country. An H1B provides work and travel authorization while the green card is pending without having to get an AP or EAD. .

As an aside, my sibling just had her GC approved through EB-1 and never applied for AP or EAD, as she had a valid H1B and her attorneys adivsed that USCIS is currently denying APs [and to a lesser extent EADs]. Forget about private employment until you have a GC in hand, would be my advise.

jxv73

This is true, but there may be issues with work authorization between the date the application is sent and the day the EAD is received.

fbf2006

No, they were full time students. I don't think someone on F1 should apply for or use the I-485 based EAD. Even someone on an H1-B visa who wants to remain on said H1-B should not use the EAD. Once you do, it is my understanding you're now on I-485 pending status. I could be wrong though.

I understand most of what you said but not sure I understand where you're going with the work authorization between the date the application is sent and the day the EAD is received in the OP's scenario.

jxv73

Say this imaginary timeline occurs.
-Jan 1 - start work using OPT, H-1 never requested
-June 1- I-140 is approved, I-485 is submitted, EAD requested
-September 1 - EAD is approved
What would be your work authorization between June 1 and September 1? The only one available is the OPT. But when you applied in June 1, you have dropped all fiction of having a foreign residence you do not intend to abandon. So under scrutiny by a USCIS adjudicator (perhaps a less friendly one) you may be considered to have worked without authorization. [I would note that in this example, the adjudicator can still approve the 485 based on section 245(k)- but that is a different story]

This is why most immigration attorneys like to have an H-1

B488

I adjusted to EB2-NIW from J1. It's a very common path in academia and at least for J1, I had no issues with continued validity of previous non-immigrant work authorization, the one thing I was told is don't submit I-485 too soon after last entry to the US (implying you misrepresented your intent at the POE). My impression is that NIW is mostly used by specialist researchers, who can by the inherent novelty of research satisfy the 'work national in scope' thing. It seems to me that most NIW petitions are for PhDs with published research and a bunch of academic citations. There are some 'non traditional' success stories circulating on e.g. trackitt (where NIWs seem to congregate), but likely more unpredictable, and requiring rather specialist legal help? Perhaps you know people with similar credentials to you who received NIW? I.e. there might be some hidden clique of orthodontist NIW-ers without a PhD. Note that the case law determining NIW critera changed last year, due to the Dhanasar ruling.

I was told it is not recommended to submit an NIW petition based on research credentials, and then right away head off and work in a non-research role with EAD. USCIS checked up on that as the final step before approving the GC. If petition is based on research, better stay there until the GC is in hand, and if you ever want to naturalize, quite some time after that too.

I would get your CV checked out right away by an NIW lawyer (they don't normally charge for that), and if you do qualify, discuss with them *before* doing anything else, to make sure you don't unknowingly move somewhere that undermines your credentials for NIW. Probably safest to stick with the University as long as possible, but a lawyer would tell you for sure.