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How can I transfer to an H-1B visa at the I-829 stage?

I am currently in my I-829 stage. Because the project I invested in is in trouble, I may not be able to get an approval of my I-829. At this point, can I apply for an H-1B visa, since my employer agrees to sponsor me? What should I do next?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You cannot transfer from an I-829 to a green card, but if you surrender your green card, you might be able to apply for a new H-1B at a consulate abroad.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    If your employer will actually sponsor you, there is nothing wrong in applying for H-1B and particularly if you can meet the requirements. However, you need to decide what you intend to do with the current green card. Advisably, consult an immigration attorney for further analysis on the possibility of an impending overlap of your current and existing green card and the planned H-1B, as both cannot co-exist.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You should retain an immigration attorney to understand your options. Giving up a GC is serious, but of course, it may be your best option.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    First of all, there are no H-1B numbers available until fiscal year 2020 for start of employment as of Oct. 1, 2019, and which cannot be applied for earlier than April 1, 2019. More importantly, with current H-1B visa lottery, it is not possible to guarantee whether or not your H-1B gets selected and whether or not it will be approved if it gets selected, even if you have an employer who is willing to sponsor you. As a conditional permanent resident, you also need to first withdraw your pending I-829 before you can apply for a non-immigrant visa, such as an H-1B. It is advisable that you first consult an EB-5 immigration attorney who can review your project and possibly advise you of the chances of approval of your I-829.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You are a conditional permanent resident now. If your I-829 petition is denied and you lose your conditional permanent residency status, then you could later be in H-1B status. You should have a consultation appointment with an immigration attorney who is knowledgeable about EB-5 and who can give you sound legal advice about your overall situation.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You can abandon your status and get an H-1B abroad, if you find a petitioner.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Unless you or your employer are cap exempt, the time for a new H-1B petition has passed for this fiscal year. New H-1B numbers will be available as of Oct. 1, 2019; they can be applied for no earlier than April 1, 2019. Depending on your individual situation and your country of birth, you might consider applying for PERM labor certification, EB-2 or EB-3, if your employer agrees to sponsor you for a permanent, full-time position and can otherwise demonstrate that it is a shortage occupation through the DOL PERM process.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You cannot be on conditional resident status and H-1B. In order to get H-1B again you will need to abandon the conditional residency, which you probably should not do.

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    Charles Foster

    Immigration Attorney
    Answered on

    Normally, if one is at the I-829 stage you would not want to abandon your conditional permanent residency to apply for an H-1B status. Remember, there are no H-1B visa numbers available until fiscal year 2020, starting Oct. 1, 2019. You would have to apply by April 1, 2019, and, given the limited number of H-1B numbers, your chance of success may be no greater than 25 percent. Even if your employer agrees to sponsor you, it may not be possible to obtain an approval. At this stage, you should concentrate on getting your I-829 petition approved and should consult with your attorney as well as your agent if you are represented by same on this matter.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    As a lawful permanent resident, you will first have to request to withdraw the I-829 and abandon your lawful permanent residency before you can file for a non-immigrant status (H-1B). This, however, can take months before USCIS confirms your withdrawal and request to abandon status.

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