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Is An Employee Allowed To Stay In The United States During The Immigration Process?


The employee can stay in the United States during the petition process only if they were already in the US when their employer filed the petition, and if that employee has the necessary work visa or employment authorization documents. Individuals typically need a H-1B visa in order to stay and work through the petition process. H-1B visas are for a maximum of six years, but if the employer who is petitioning for the green card is the same one that the individual works for while they are in H-1B status, the length of the visa can be extended in one year increments, if certain conditions are met. These conditions are the length that the green card petition has been pending, and whether or not the PERM request was begun before the end of the fifth year on the H-1B visa. Individuals who are not currently working for the same employer who is sponsoring their green card application may stay in the US, provided the petition by the employer and the green card application were filed simultaneously, and an employment authorization application was also filed at the same time.

During a Pending Petition, Can The Individual Work?

If the individual possesses an H-1B visa, and their employer petitioned for their green card before the end of the fifth year of their H-1B visa, then the individual can continue to work while their petition is pending. Individuals are able to work in the US while their green card application is pending if they have a work permit. This permit is also called an employment authorization document. Under their employment authorization, an individual can work for any employer, even if they are not working for the employer who petitioned for their green card. However, they must work for the employer who petitioned for them once they receive their green card.

During a Pending Petition, Can The Individual Travel?

Depending on the individual’s status, they may travel while their petition is pending. An individual would need to have a multiple entry H-1B visa in order to be able to return to the US after a short trip abroad. This multi-entry visa is typically a stamp in their passport from an American Embassy overseas. Individuals can apply for employment authorization to legally work in the US if they applied for their green card while in the US, and if their priority date has been reached. They are also able to apply for advance parole, which is a travel document for individuals who are waiting for their green card petitions to be approved. This document is needed in order to be able to return to the US while their petition is pending.

Can An Individual Change Jobs Or Employers During a Pending Petition?

Under the AC-21 law, individuals are allowed to change their employers during a pending green card petition when certain criteria have been met. The original employer must have filed a green card petition for them, and that petition has to have been pending for at least 180 days. A new petition from the new employer is not necessary. However, this process is highly complicated. If an individual meets the AC-21 criteria to change their employer during a pending green card petition, they should consult with an experienced immigration attorney.

For more information on Staying In The US During A Pending Petition, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.

Fisher Legal Group

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