Sunday, May 31, 2015

Can an H4 Visa holder file for a Green Card through Labor Certification or other means?

This is a question often asked by many.  The answer is a big yes. In fact, we recommend our H4 visa holders even before the H4 ead to have a PERM labor certification (employer or offer of employment required) or National Interest Waiver or even EB1 started for them because you never know when the priority dates can become current. Note that the H visa including the H4 visas are dual intent visas.  This means you can have both the non immigrant and an immigrant visa running concurrently.  There are actually many reasons why the H4 visa holder should actually look into their own permanent residence process but I am listing only two examples below.

Two success stories to illustrate the advantages of an H4 visa holder filing for PERM Labor Certification.

In 2005, a couple came to see us to file a labor certification for the husband who was on H1B and who had a very good position.  During the conversation, the wife asked me if she should also file a labor just in case.  We answered positively.  The case was filed and within 5 months the case was actually approved for both the H4 visa wife and the H1B visa holder.  Ultimately a form I-140 was filed for future employment and approved within few weeks. In July 2007, the husband's company announced that they will be closing the company.  In August 2007, when all the dates became current, we file an adjustment of status for both husband and wife.  Ultimately they were both on EAD through pending adjustment of status.  This allowed both of them to stay and work in the United States.

We have had another very similar situation around 2008. In this case the couple parted and the dates for the H4 became current which allowed her to stay in the United States under a pending adjustment of status and a period of stay authorized by the Attorney General.  This allowed the H4 visa holder not only to stay but also to work in the United States.

Just based on these two situations, we highly recommend having a labor filed for H4 visa holders while you are under an H4 visa status.  In fact, with the H4 EAD it will be a lot easier to have the green card process started for the H4 visa holder especially on the issue of ability to pay in the form I-140.  Ultimately, if the I-140 EAD rules are passed, the H4 visa holder might even benefit from an independent work permit not dependent on the H1B visa holder.  Important note: for the PERM labor certification, an employment offer needs to be present. As for NIW and EB1a, no need for employment offer because they are both self petitions.  If you need help in filing for your Labor Certification or Form I-140, feel free to call us at (510) 742 5887.

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