Premium Processing of I-140 Permits Specialist Physician to Complete Green Card Processing in Time For the 6-year H-1B Limitation

October 18, 2011 - This pulmonary/critical care physician was admitted to permanent residency on October 18, 2011.  This fairly complex matter came to us in 2010. It was difficult because of time constraints resulting from the fact that this specialist used most of his entire 6 year H-1B time completing his residency and fellowship, without starting the green card process.  He had spent more than 5 of the 6-year H-1 maximum stay at the time we were retained.  Given that he had less than 1 year left on H-1B status and had not filed a PERM application, we could not continue to extend his H-1B after 6 years without some complex legal maneuvers.  Generally, after the 6th year, a PERM or I-140 green card petition had to be pending for more than 365 days before further yearly extensions of the H-1B can be obtained.  As such, this physician was facing possible abrupt departure after completing his fellowship as he would have used up total of 6 years on the H-1B status for the residency and fellowship without having started the green card process.

To keep him here, we needed to have his I-140 and/or I-485 filed and pending before his H-1B visa expired in less than one year.  That meant that we needed a very fast PERM approval. Another option was to file a request for premium processing of the I-140 petition after the PERM is approved. Once approved, we would be able to extend his H-1B visa into the 7th year and thereafter. The third option was to simply pursue an NIW green card petition which permits concurrent filing of the I-140/I-485 immediately with EAD requests, and bypassing the PERM process to save time.  This third option obviously required employment a medically underserved area which he did not have.  So, we decided to pursue options 1 and 2. We started out by submitting a PERM labor certification application after an expedited recruitment campaign.  To give us additional time, we immediately filed an H-1B recapture application.  In the application, we requested an extension of the H-1B status for the amount of time he spent outside the U.S.  on vacation and for other purposes.  We were careful to request each day that could be recaptured to obtain the maximum extension. The extension request was granted and he was given several more weeks on the H-1B status.

Fortunately, the PERM labor certification petition was approved expeditiously within weeks. We filed an I-140 EB-2 (premium processing) petition and requested expedited processing citing that immediate approval was necessary in order to obtain further H-1B extensions into the 7th year.  Upon receiving the I-140 approval, we were then able to extend his H-1B visa into the 7th year and also filed an I-485 adjustment of status petition for him.  Shortly thereafter his I-485 was approved and he became admitted to permanent residency before during his 7th year, completing the immigration process.