Endless Wait

The CIR draft outline from April 29th includes a provision to provide green cards to all Master’s degree or Ph.D degree holders from accredited universities a green card right away as soon as they have a job offer. How on earth did we go from 10+ year wait to that!! This is worse than the 1000 point dip that the Dow experienced yesterday. Is this a week of surprises or what!!???

Computer World had a great discussion about this here

First of all, that doesn’t even make sense. Some Master’s Degrees can be received in less than a year. Associating a green card with a degree will just mean everyone out there will get a Master’s Degree - just because. I think the important thing is to ensure that there is DEMAND for a certain sector. And provide green cards BY MERIT to the ones that deserve it the most.

For those of us that are losing their mind with questions, remember that this was only a DRAFT OUTLINE that some very pro-immigrant Senate Democrats introduced. It is VERY VERY unlikely that it gets passed in that state. Most likely, there will be considerable debate on this topic some day, and the bill will look quite different and if it ever passed into law (which only a small fraction of the bills introduced in the Senate do), it will be even more different than even the bill that was originally introduced.  There are several hurdles to cross, and tons of uncertainty ahead of us over the next year or so. Worst case, the financial reform bill and climate change bill will mean that the CIR gets pushed back again. Hopefully that will not happen.

BUT, we do have a ray of hope. Actually, it’s more like a whole small crack in the wall…let’s all pray and work to give the CIR a fair shot.

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Career planning is hard for everyone. But if you are an immigrant, you just added a whole extra layer (triple fat extra mozzarella cheese one at that) of confusion and rules that you are gonna have to navigate around.

Take for instance, the AC21 nightmare that restricts you to same or similar jobs. Or stupid H4 visa restrictions that restricts you from working altogether. Or H1-B visas that don’t let you start your own business or do freelance work. There are more. EVERY visa comes with its fair share of tragedy. F1 for students restricts them from working outside the campus and more than 20 hrs/week. The list goes on.

Through all that maze, it can feel suffocating. If you are still new to the country, prepare yourself for a LOT of these kinds of restrictions.

One thing that’s helped me through this journey is Penelope Trunk’s Blog on Career Advice. Read it every day. I only started recently and wish I’d seen it earlier. And her book too, if you have the time. For instance, her idea that you don’t have to LOVE your job (something which everyone tells you you do), makes a lot of sense to me after reading this post. It’s my few minutes of practical career thoughts. For years, I’ve worried about how to work around immigration related restrictions. After I started reading her blog, I realized I’m looking in the wrong direction. Perhaps there is more to it than just finding the perfect career. I still worry about my career. A lot. But her blog’s helped me live through it. I wholeheartedly recommend it. Thanks Penelope.

Life throws tons of googlies and curve balls at all of us. Here’s wishing you courage to face yours and make the right career decisions!

There are plenty of us that got into the green card waiting line in 2007 or earlier. To me, it feels like it just happened, but it’s almost 3 years!! And we’re still in line, which hasn’t moved an inch. Many of us have an EAD (employment authorization document) as a result of being in the pending green card status. Many of us also have an H1-B or other such visa. If you have an EAD, then you CAN start and run a business - any business - as you please. Of course, if you are the primary on the green card process, you’ll still have to keep your current job (which you can change on AC21).  Even if you don’t have an EAD and are only on the H1-B, you can still dabble in business but that’s a lot riskier - I will write a separate post on that topic, but this post is about running a business on EAD.

Since I am in that position and know several people out there that are in that position as well, I have some insight into this issue. I also have my own part-time business so I have some experience in this matter as well. Most of my buddies that want to start a business on EAD, don’t do it from fear of jeopardizing their green card process. That’s a misconception!! You do NOT jeopardize your green card process by starting a business as long as you do it right and follow the rules.

Before I go further, let me say that it’s of course better to start a business once you have your green card for at least a year. That is of course the cleanest option. While you wait for the green card, you can build skills that will help you start a business eventually, Etc. But not everyone can wait for years for the green piece of #$@# to arrive. Some of us are impatient and risk-takers. This is for them.

You are no longer on H1-B if you start a business: H1-B visa does not allow “working” on anything else other than your full time 40-hours/week job that the H1-B petition was for. Not even if it’s part time and not even if it’s a hobby. There are some gray areas, but we’ll go with this for now.

** Correction: Thanks to Eros for pointing out that it is possible to apply for a second H1-B visa for part time work another 20 hours/week on top of the first H1-B visa. Note that the second H1-B still needs to be compliant with all H1-B laws and is only awarded for occupations that have a demonstrated shortage in local workforce (engineers, nurses, doctors, Etc.) and most likely the second H1B will need to be another “job” not your own business, unless you have an established business since H1-B is usually not awarded unless the company proves that it’s able to pay your salary. There are workarounds, but this is the usual scenario. Again, thanks to Eros for bringing this up.

So, in other words, when you start a business, you are working on your EAD automatically. And that means you are on EAD for both your day job AND your side business. There is no such thing as working for your employer on H1B and working on your business on EAD. I know several attorneys don’t get this (isn’t that crazy!) and several people don’t follow this and perhaps they’ll get away with it, but the cleanest way to do it is to let your employer know that you want to work on the EAD and not H1-B. You just have to fill out an I-9 form and provide your EAD (instead of the H1-B visa stamp) for employment verification, that’s all. No big deal. Most employers will not even care what document you use to prove your employment verification, as long as you have one. In fact, it’s better for them - now they don’t have to follow H1-B wage restrictions/policies, etc. and they also don’t have to renew your H1-B when it expires. This is what I’ve done and I know it works. You do run a slight risk that if your green card petition was rejected for some reason, you don’t have a H1-B to fall back on. But hey, 5+ years later, when they do adjudicate your green card petition, there should be no reason for a rejection unless you’ve done something wrong, in which case you probably won’t be allowed to stay on H1- B anyway. So stop worrying and go for it if you really are clean and want to start a business!

It will most likely have to start as a part time thing, at least for you. Your spouse can work on it full time though (if she has or can obtain some sort of work authorization). Or you can hire someone to work full time, here or anywhere in the world. For instance, if it’s an online business, you can hire people in India or elsewhere via odesk.com, naukri.com or any such sites to work for you. Another option is to team up with other people that can work full time, or others that can work part time as well just like you.

Of course, all that is easier said than done, but it’s possible and I know people that have done it (I am one).

Say you start your business and it does TAKE OFF!! Then what are your options? If you’ve saved up $500k in personal assets, now you can apply for a green card under the EB-5 category, which the Govt. loves, because it generates American jobs, and get your green card in 12-18 months. Does that sound good? It is! The EB-5 visa requires you to invest $500k (if its in certain specific rural areas) to $1 million of your own personal funds and generate employment for up to 10 Americans within a 2 year period from the date of starting the business. An easier option is to move your green card process to your own business under AC-21 but the key there is that your new job (running your own business) has to be same or similar to the job description on your labor petition for the green card. If that’s not a problem, then that’s an easier route. Don’t worry about all that now though. Just know that you do have options to move full time if your business takes off and makes a million dollars!

Now, always make sure that your employer is OK with a part-time business. This is a very sticky point for many and employers usually don’t like their employees to be doing other things part time. But honestly, everyone does SOMETHING with their free time. Some listen to music for hours or watch TV, some play games all night, what the heck, you want to start a business! It’s your call and if you are like me, don’t work for someone that doesn’t understand that. When I took my current position, I let my employers, including my boss and his boss know, during the interview process, that I have a part-time business. It was in hobby proportions and I was only working <10 hrs per week on it with 2 other people working full time, and I was happy to share all that with them. They still took me!! And my boss appreciated my honesty. Now I know that may not happen with everyone, but I do believe that if you put it right, and make sure that you truly do want and like the job that you are interviewing for, then it can work out. You just have to present it right. I said that I’ve always had an entrepreneurial spirit and like engaging in such a business for a few hrs/week and that helps satisfy that need, so I can focus better at my job. In fact, most employers appreciate someone that’s a self starter and has had entrepreneurial exposure. You don’t have to dwell on the subject, just play it to your advantage and make it sound like a POSITIVE instead of the other way around. It’s always better to be honest upfront than have them find out about it from some third party and think that you were hiding it all along, when it may not be a big deal at all.

So go chase your dream starting now - you don’t HAVE to wait for the green card!

Read this excerpt from the April 2010 Visa Bulletin

Explains RETROGRESSION, Basis of diversity based visas and over-subscription well. It’s good background for all those of you waiting in the 7% country quotas that MAKE NO SENSE. That’s like saying all employers in the country should provide employment based on race.

Dear DOL and USCIS. DIVERSITY BASED VISAS the way they are, DO NOT MAKE SENSE. Get it?

BACKGROUND INFORMATION ON FREQUENTLY MISUNDERSTOOD POINTS

Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, a significant amount of demand is received each month for applicants who have priority dates which are significantly earlier than the applicable cut-off dates. In addition, fluctuations in demand can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7% is a cap which visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however.

Applicability of Section 202(a)(5): INA Section 202(a)(5), added by the American Competitiveness in the 21st Century Act, removed the per-country limit on Employment-based immigrants in any calendar quarter in which applicant demand for numbers in one or more Employment-based preferences is less than the total of such numbers available. In recent years, the application of Section 202(a)(5) has allowed countries such as China – mainland born and India to utilize large amounts of Employment First and Second preference numbers which would have otherwise gone unused. Such numbers are provided strictly in priority date order without regard to the foreign state chargeability, and the same cut-off date applies to any country benefiting from this provision.

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of an earlier cut-off date than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)

Furthermore, Section 202(a)(2) reads, “2) Per country levels for family-sponsored and employment-based immigrants. Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed seven percent (in the case of a single foreign state) or two percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.” The seven percent per-country limit specified in INA 202(a)(2) is considered to be for both Family-sponsored and Employment-based numbers combined.

Allocation of visa numbers under Section 202(e) is accomplished as follows:

If based on historical patterns or current demand it appears that during a fiscal year number use by aliens chargeable to a particular country will exceed the per-country numerical limit for both the Family and Employment preferences combined, that country would be considered oversubscribed. Both the Family and Employment preferences would be subject to the prorating provisions of INA 202(e)(1).
Sometimes during a fiscal year it may become apparent that because of a lack of demand in the Family preferences, number use by aliens chargeable to an oversubscribed country will be well within the per-country numerical limit. In such case the excess Family numbers would be made available to the Employment preferences subject to the prorating provisions of INA 202(e)(1). Each of the first three Employment categories would receive 28.6% of the excess numbers, and each of the Fourth and Fifth preference categories 7.1%. (Fall-across would likewise apply if an oversubscribed country lacked sufficient demand in the Employment preferences but had excess demand in the Family preferences.)
If a foreign state other than an oversubscribed country has little Family preference demand but considerable Employment preference demand, the otherwise unused Family numbers fall across to Employment (and vice versa) for purposes of that foreign state’s annual numerical limit. For example, in FY-2009 South Korea used a grand total of 15,899 Family and Employment preference numbers, of which 1,688 were Family numbers and 14,211 were Employment numbers. This grand total was well within the FY-2009 per-country numerical limit of 25,620 Family and Employment numbers combined, so South Korea was not oversubscribed. The unused Family numbers were distributed within the Employment categories, allowing South Korea to be considerably over the 9,800 Employment limit which would have been in effect had it been an oversubscribed country.

I didn’t even know about this until today. Seems to have started in January. I urge all Endless waiters to read it and engage in dialog with the USCIS’s powers that be.

http://www.uscis.gov/blog/

Now that the health care bill made it through the House, despite with outstanding issues that are likely to see class action lawsuits, next up is the CIR!!

Expect the CIR to come into focus over the next few months. And going by the reactions on health care, which honestly is a far less controversial topic than immigration is, I am sure we’re up for some serious drama in during debates and Congress voting. The key is whether legal immigrants will get their fair share of focus. Lawmakers supporting legal immigrants and our causes are few in number. Organizations like AILA and Immigrants List are trying raise funds to lobby for our cause. Please contribute to them if you are able to, even if it’s $10.

Click on this link and then contribute link on the right. http://www.immigrantslist.org/candidates

Endlesswait.com has absolutely no affiliation with Immigrant’s List and I don’t even follow them all too closely. They fight for the cause that helps us and they don’t seem like a group that lobbies endlessly without reason, which is why I support them.

**** THIS POST IS CONTRIBUTED BY KAORI *****

Hello.  Has anyone filed I-140 amendment?

My I-140 was approved over a year ago, and I’ve been waiting for the visa to become available… In a meantime the name of my company changed.  Everything about the business and my job remains the same, just a name change.

So I was told that I’d need to file I-140 amendment, and it could possibly affect my GC case.  I want to know how long it takes to process I-140.  If you have had a similar experience, please share.

Thanks!

***** Post contributed by lyndaforreal *****

I just learned about the dilema of the LEGAL immigrants in this country who have waiting years and years for their green cards.  I was searching for more information on possible policy changes and googled “legal immigration”.  I get the prompt that asks if I meant illegal immigration.  That is all I seem to be finding; changing policy for illegal immigration.  If I understand this correctly, the people who have been waiting for their green cards are going to be trumped by the illegal immigrants????  That is not right.  I think so many Americans, like myself, are ignorant to the the plight of the legal immigrant.  What to do?

***** Post contributed by lyndaforreal *****

Years ago, I woked for the University of Miami in the Intensive English Program.  Students there would enroll into the U on condition that they would successfully pass the test after the IEP.  They would then spend 4 to 6 years at the U and upon graduation and employment receive their green cards.  As I said, it’s been years.  After spending the evening with my friends from India who have their masters degrees, have been employed here for 6 - 10 years each, paying taxes, and abiding by all our laws, they STILL don’t have green cards.  Don’t have any idea when they will get them.  I couldn’t believe it.  It is insane.  We have a housing crises here in the U.S.  We have hundreds of thousands of willing, able and qualified home buyers who won’t buy due to the the uncertainty of their futures in this, their new country.  What can the beurocrats NOT SEE?  It makes me sick to my stomach.  We need to change the policy NOW.  Grant these people who have proven themselves green cards immediately.  Let them live the American dream.  It is a win/win for everyone.  What else can I do?  I’ve written to the White House.  Why is it like this?

***** Post contributed by lyndaforreal *****

There are hundreds of thousands of highly funtioning legal immigrants who have saving money for years, waiting in the immaginary line for their green cards, who would purchase a home immediately if their futures in this country were certain.  Change the policy.  Give them their cards.  Let them buy homes.  Our immigrant neighbors are our brothers and sisters in this country.  We were all once immigrants from somewhere.