By Debbie McGoldrick

“I have an H-1B visa that will expire next May. At that time I will have been in the U.S. for six years. If I change employers at that time, will I be eligible to receive another H-1B visa? It would be easy for me to do so, but I don’t know if it is permissible. I am also considering asking my employer to sponsor me for a green card. Would I be able to remain in the U.S. while this is pending, even if my H-1B expires? Does it automatically renew in cases where green card applications are pending?”

WITH regards to your first question, when your visa expires you will, in accordance with H-1B visa rules, be required to leave the U.S. and remain abroad for one year before applying for a new H-1B visa. This holds true even for those who conclude their period of employment with the original H visa sponsor, but wish to remain in the U.S. (and in status) with a new employer.

If you want to return at that time, your new employer will have to apply for a new H-1B for you. The annual allocation for H-1B visas is 58,200 and they are used up very fast, usually within a month or so of first becoming available. (Applications for fiscal year 2007’s allotment were accepted starting in April of this year, and were gone the following month.) Obviously, you’ll have to therefore stay abreast of the situation if/when you leave the U.S. after your current status expires.

Your employer would likely be able to sponsor you for permanent resident status, but because your H-1B expires in May, the sponsorship will not allow you to remain in the U.S. while the application is pending.

Regulations are quite clear on your particular situation. An law titled the American Competitiveness in the 21st Century Act (passed in 2000) allows for an H-1B visa holder to extend the visa beyond the six-year limit if the person has an employment-based green card application on file, and if the employer also filed the required labor certification application at least one year before the expiration of the H-1B visa. In such cases, H-1B visa holders can extend their status for a year at a time, or until a decision is made on the green card application.

As your visa expires in May of next year, you will unfortunately not be able to extend your time here via a green card application lodged through your current employer, because there is no labor certification pending on your behalf.

Did you apply for the recently concluded (December 3) DV-1 diversity green card lottery? Hopefully you did, and though the prospects of success are slim given that only 50,000 visas are available, perhaps you’ll be one of the lucky ones.

Waiting and Waiting

HAD a call recently from a relative in Ireland who knows a Philippine-born nursing aide who has lived in the country for many years, having married an Irishman. The nurse, though, once had dreams of coming to the U.S., and was wondering whatever happened to the green card application filed on her behalf by her U.S. citizen sister 20 years ago, in 1986.

The paperwork was filed under what is now the family fourth preference, which allows adult U.S. citizens to sponsor siblings. Natives of the Philippines must wait the longest for processing because they have the most petitions on file, and there are only 65,000 fourth preference visas allocated each year.

Guess which Philippinos are currently being called for processing? Those with applications filed on or before July 1, 1984! Good thing Ireland was a viable option for the nurse in question.