Q&A’s published on Lawyers.com and the Epoch Times on January 25, 2019 1.Can Open LLC on EAD(GC) on EB3? 2. 2. Employment Immigration After Living in the US and Only Have 7 Months on a Different Visa. If Applying for PERM Employment with a Sponsor Waiting Period Could be How Long? 3. I Have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H-1B?

1. Can open LLC on EAD(GC) on EB3?

I have an EAD, awaiting adjustment of status on EB3, India. I would like to start an LLC and become self employed. I will be either sub contracting and getting a 1099. Am I allowed to start an LLC and be its only employee?

Mr. Lee answers:
Having such an EAD, you may be allowed to do such since the card allows open market employment. In addition, you may be able to use the EAD position as a basis of your green card if you are in the last phase of your immigration to the US, and have already had your I-140 petition approved and the I-485 adjustment of status filed. Under the rules of porting, you are allowed to move to a same or similar occupation and keep your case if the I-140 petition is approved and the I 485 has been pending for 180 days. U.S.C.I.S. has said that porting can be to self-employment so long as it qualifies under same or similar occupation. Please note, however, this may lead to a number of questions on your immigration interview.

2. Employment immigration after living in the United and only have 7 months on a different visa. If applying for PERM employment with a sponsor waiting period could be how long?

Mr. Lee answers:
It is difficult to answer your question as you do not state what country you are from, and quota restrictions on certain countries can increase the period of time of waiting. Generally speaking, however, employment immigration of natives of countries other than India, China, and the Philippines will generally take a couple of years taking into account time required to process labor certification, I-140 petition, and either adjustment of status or consular processing. If you do not require a labor certification application, the process may be much shorter. In the event that you do require one, your seven months of remaining stay will not allow you to obtain a labor certification, as that process takes approximately 10 months between recruitment and Department of Labor processing. However, it should be noted that the immigration law allows employment based applicants up to 180 days of illegal stay and still maintain eligibility for adjustment of status. Once an individual has the labor certification and assuming that there is visa availability and the individual is in status, both I-140 and I-485 adjustment of status applications can be filed concurrently, and such filing would allow an individual to remain with authorization in the US during the time of the processing.

 3. I have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H1-B?

I’m not a cap exempt neither the company that provides work for me in USA but I have B1-B2 visa and work experience 13 years .Can I convert to H-1B?

Mr. Lee answers:
My personal feeling is that even with the amount of experience that you have, lacking any type of post secondary education, a U.S.C.I.S. officer would be hard-pressed to approve an H-1B application for you. In addition, of course, the position that is being offered must be one that normally requires at least a baccalaureate degree in the field of specialization. Finally if your question is whether you can obtain an H-1B status in the US without leaving assuming that the H-1B petition can be approved, that might be problematical in terms of timing. The H-1B lottery season begins on April 1, but selection and approval only make the beneficiary eligible to begin work on October 1 at the earliest. You must be able to show U.S.C.I.S. that you are entitled to stay under some type of legal visa status until September 30 to successfully change status in the US. Whether you will be able to extend your present status or change to another status is a question that you may wish to explore.