Can my employer file for a green card when I have a B2 status? 9 Answers as of October 28, 2011

Sure. You can leave the US and re-apply for the H1b or the green card while you are abroad or here.

Yes, you may seek a H-1B visa while on B-2 status.

Your employer can start filing for a green card while you are in the U.S. in B-2 status. It is not a problem remain in the US or travel and return to the U.S. in B status until the I-140 visa petition is filed but will be afterwards. You will have no problems at all if you change back to H-1B. You should consult with an experienced immigration attorney if you wish to pursue the matter in order to get a precise timeline.

As long as you are not out of status, your employer can petition for a new H1B, but if the last H1B was denied, you probably are out of status. If you are out of status, you will need to go home and apply for the B2 or any other non-immigrant visa. However, if your current H1B visa is still valid, you can apply to change to B2 status without going home first. You should consult with an immigration attorney regarding permanent residency or a green card based upon employment.

Once your H-1B extension is denied, you do not have a legal status to change to. This means another employer can sponsor you again, but you will have to leave US and get a visa to come back. Depending on your nationality, Canadians do not need an H-1B visa to enter U.S.

Your employer can definitely file a green card application for you, but if you are filing in the professional worker category (EB-3) the backlog for such cases is several years. This means that if you want to stay in the U.S. while you are waiting for the green card application to become current, you will need another work authorizing status to keep you in the U.S. while you are waiting for the green card to be processed.

Your employer could file another H1B case for you. There is no bar against filing another application. That being said, you must remember USCIS will have the prior case. The basis for your prior denial needs to be dealt with. As for permanent residence through your employer, in order to adjust your status in the U.S. you must maintain lawful immigration status. You will not be able to enter with a tourist visa and adjust through an employment-based petition as you will have fallen out of status in the interim. It would be best for your employer to file a new H1B petition on your behalf and later apply for an immigrant visa if they wish to do so.

Be careful! You cannot work on a B-2. Also DHS does not like it when you change to B-2 when your actual intent is to again change to an H. This can be construed as fraud/misrep- a serious offense. An employer can start the three step green card process for you if you are in or out of the US regardless of status. That is a different issue.

Your employer has to file for H1B for you first. You may need a lawyer to help. You are welcome to contact us.