When your H-1B or O-1 employment visa is nearing expiration while your Green Card application is still pending, it can create confusion and anxiety for many immigrants. Understanding what happens in this situation, and what legal options are available, is critical to maintaining lawful status in the US.
Immigration attorney Ingrid Perez at IBP Immigration Law, Florida, dived deep into the matter. In a YouTube video, she explained why an EB-1A or NIW, which are employment-based immigration categories that allow professionals to apply for a Green Card without a job offer or employer sponsorship, is a petition and not a legal status.
‘O-1, H-1B or L1 keeps you legally in the US’
Perez explained that the O-1 and H-1B visas are “popular” in the US as they allow dual intent. They allow people to stay in the country and pursue a Green Card simultaneously. However, she went on to state that “dual intent doesn’t mean no rules”. One has to remain compliant with all the terms of their visa for the duration of their stay in the US.
What to do if O-1 or H-1B expires while you’re awaiting a Green Card?
Perez said that in case of such a scenario, the applicant’s petition can remain active as the US Citizenship and Immigration Services (USCIS) may still approve it. The applicant must, however, maintain their legal status.
“If you fall out of status, you could still end up with an approved petition, but you may not be able to adjust your status. You may be forced into consular processing, or you may face delays, denials, or extra scrutiny later on,” she further said.
‘Status issues can lead to Green Card denial years later’
Perez explained that status issues don’t necessarily affect petition’s approval but they do show up later when one applies for adjustment of status.
“When a USCIS officer is deciding to issue the Green Card, that’s when someone looks back and says ‘you had a gap here or this employment didn’t match the approval, or you weren’t in status during this’…that’s when green cards get denied, cases get denied…or people are suddenly told they need to leave the US,” she added.
‘H-1B holders must work for the sponsor in the approved role’
Perez highlighted that it is essential for H-1B holders to continue working for their sponsored employer in the role that was approved for them. For O-1 visa holders, she said they must stay within the approved scope of work as well. “Even small deviations can quietly create problems later on,” she added.