Working Visa Expiring soon, but have a 2 year old US citizen

[jon22jon 0]

Hello,

This is for my brother.

He is currently on US on a working visa with his wife(her status is under his work visa) and a 2 year old US citizen. Working visa extentions have been exhausted so Company was willing to petition for Green Card.

Short story would be that his HR dept. made a mistake of not filing for his Green Card right away. It should have been filed 1 year before his working visa expires, so HR filed it late. He just found out today that he will be out of status by August and that he needs to leave the US.

What are the options for the family so they can stay in the US? Can they stay in the US and work based on the US citizenship of their baby? Can they file some type of extention to stay and find another employer? Can they file for Green Card/US citizenship? Do they qualify for any type of Visa at all?

Please help, thank you.

*****I tried searching the forum for this same topic but haven't found it yet.

[aaron2020 11,651]

There is no option for the entire family to immigrate or stay in the US because of the baby. The baby can stay because he is a US citizen. His foreign parents cannot stay in the US.

A US citizen must be 21 years old to petition a parent. When the child turns 21 years old, he can then petition for his parents.

If another wishes to sponsor them for a different visa, then they can take advantage of that. However, there is nothing that will allow them to remain in the US past the date his work visa expires so he can can continue looking.

They cannot file for green cards on their own. They cannot file for US citizenship.

They can file for any visa or benefit they qualify for, but there is nothing I can think of.

Whatever they do, they should not overstay the work visa. A US citizen child does not protect the parents from detection by ICE or deportation.

[jon22jon 0]

Thanks Aaron.

They are not planning on overstaying at all.

Can they(the parents) apply for a tourist visa in the meantime so that they can stay/visit or at least have some time to apply for other jobs?

[Harsh_77 718]

Completely agree with Aaron, they do not stay in US based on US born child.

Unfortunately there is no other visa that is available for your situation.

Thanks Aaron.

They are not planning on overstaying at all.

Can they(the parents) apply for a tourist visa in the meantime so that they can stay/visit or at least have some time to apply for other jobs?

They can request for change of status but as u said if they have exhausted their years on H1 even the new company cannot file a H1 for them.

On top this years H1 quota is already filled next opportunity will be April of 2014.

[Boiler 45,318]

They would need a year out anyway.

[Morningmist 76]

" It should have been filed 1 year before his working visa expires, so HR filed it late."

the PERM application needs to be pending for more than a year in order to be eligible for extension. If his PERM is approved then the company can apply for I-140 and H1 extension using premium processing even now. Premium processing in both cases will be approved in 2 -3 weeks tops. My company did that for my coworker. His PERM was pending up until just 2 months before he was suppose to leave the US. They got the PERM approval and immediately applied permium processing for both I-140 and H1B extension and he got his H1 extension and I-140 approval just a couple of weeks before he was suppose to leave. It was very stressful for him. Ask him exactly where he is in the processing because he might still have a shot at staying and his HR department just might not be aware of it. When it comes to GC and other immigration always assume HR knows NOTHING and deal with lawyers directly.

[Morningmist 76]

The company might not be willing to dish out the 2 grand ( although I dont know why. It's pittance compared to cost of traning someone again). So I suggest he be willing to pay it himself.

[Morningmist 76]

http://forum.murthy.com/index.php?/topic/36871-7th-yr-extension-perm-pending-will-not-make-to-365-days/

[jon22jon 0]

Thanks Morningmist.

PERM is still pending, they did talk to the company lawyer and its very unlikely that it will make it on time since his work visa expires End of July, per the lawyer it might be til end of this year when PERM will be approved. Regarding the expense for "premium processing" or any other fees the company is paying for all expenses. It's just that the HR person really dropped the ball on this one. There's actually 2 of them the other person's visa expires today, so she has 30 days to leave the country. Dumb question but i just want to make sure, if my brother's PERM is approved after work visa expires, can he still process or does he still have to wait for a year/leave country type of deal.

Thank you so much for everyone's replies/advice.

[aaron2020 11,651]

He needs to leave when the work visa expires. Getting PERM after his visa expires does not change thaw fact that he has no legal stairs in the US once the visa expires. On the day hi work visa expires, he will have no other documents allowing him to stay legal in the US. All he has I the hope that he will get something else which does not give him any immediate rights to stay after the visa expires.

You need to understand - no way to stay in the US after the work visa expires unless he has another visa in that date. Nothing he or his company can file to keep him around at this point.

[Morningmist 76]

Yeah in that case, I'm sorry to say your brother will have to leave the country unless something changes in the next 4 weeks. He should stay in touch with his lawyer everyday in case PERM comes back approved. Tourist wont give him unlimited time to stay here and F1 doesn't make sense really because in order to be eligible for H1 later on, he has to be outside of the country for 1 year.

[Morningmist 76]

As for his visa processing after PERM has been approved, I think he should talk to his company lawyers. But he will have to leave the country when the visa expires if nothing else is in the works. Post on the site I posted. They seem to have better understanding about H1B visas.