As the United States is poised for elections later this year the debate on immigration and citizenship continues to rage. The focus is on the millions of undocumented immigrants in the US with the Democrats wanting a path to citizenship and the Republicans opposing it. This is a matter that is not going to be resolved any time soon, but more than this what is affecting U.S. businesses is lack of qualified workers in some specific fields and the long wait time for many skilled workers who have been approved for green cards.
Many foreign workers are in the U.S. in H-1B status. There is a total numeric cap of 65,000 H-1B visas each year and an additional 20,000 for those with an advanced U.S. degree. This cap is applied cumulatively across all countries. However, the green cards, which are also subject to overall annual caps also have a per country cap of 7% of the total number of visas that can be allotted in a particular category. For example the EB-2 and EB-3 visa categories are severely backlogged for several years for nationals from India and China. The delay runs into several years and often can escalate up to a wait amounting to decades. The waiting period keeps changing based on the number of visas that are issued each year. As a result many Indian IT workers are in limbo while they continue to work in the U.S. They are approved for green cards but cannot obtain one till a visa number becomes available. Many companies will require these individuals to work on approved work authorization (EAD cards) and use Advance Parole to travel in and out of the U.S. However, such individual are also eligible to extend their H-1B status during this entire waiting period. And spouses of such, eligible H-1B workers are eligible for H-4 visas and work authorization, enabling them to take up any job in the U.S.
Newly married foreign national spouses of those individuals who do not have continuous H-1B status are in trouble. They are not eligible to get H-4 visas and they cannot get most other non-immigrant visas like a B or and F because it is almost impossible for them to prove non-immigrant intent while being married to an individual who is approved for a green card.
It behooves individuals intending to get married to a foreign national working in the U.S. to check potential immigration issues which could require them to live separately for several years.
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