QUESTION: I am working in the US on OPT as a professor at a university. My employer has obtained a certified PERM Labor Certification for me and is in the process of filing the I-140. My OPT expires in 4 months. Will they have to file an H-1B for me?

THE IMMIGRATION ANSWER MAN: It depends on what preference category your I-140 is. If it is for a category where a visa is currently available on the Visa Bulletin, then you could file an I-485 Application for Adjustment of Status concurrently with the I-140. As long as this is filed before your OPT expires, you will be able to remain in the US in an authorized period of stay while the I-485 is being adjudicated. The work authorization card should be issued within 90 days of the I-751 being filed (which can be filed concurrently with the I-485). So if the I-140 and I-485 are filed soon enough you can have the new work authorization card before your current card expires.

But if your I-140 is for a preference category where a visa is not currently available, then you will have to wait for a visa to become available on the Visa Bulletin before you can file the I-485. You would have to remain in status, which would require you to change to H-1B status.

It can also be a good idea to change to H-1B even where you are able to file an I-485. Doing so keeps you in status in case USCIS denies the I-140 and/or the I-485.

If you would like assistance with this process, you can schedule a consultation with me by calling 1-800-343-4890 or 901-682-6455.

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* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.