July 26, 2010: Employment Authorization For Beneficiary Of A Family-based Fourth Preference (Brother/Sister of a U.S. Citizen) Visa Petition
Employment Authorization for FB-4 Beneficiary?
My brother is a U.S. Citizen and is 33 years old. I live with him in the U.S. and I am currently on Optional Practical Training (OPT) after graduation from college.
If he files for a family based green card for me, which has a waiting period of way over 3 years, am I allowed to request Employment Authorization during that time?
The petition your brother would be filing for you is known as a family-based 4th preference petition (“FB-4”). For August, 2010, the monthly U.S. State Department Visa Bulletin reflects that FB-4 petitions filed before June 1, 2001 will have permanent resident visa numbers available to the beneficiaries of those petitions.
If a person is in the USA and in lawful status, or can benefit from section 245(i) of the Immigration and Nationality Act, then an application for adjustment of status to that of a permanent resident can be filed on the first of August, together with an application for employment authorization.
Your question indicates that your brother has not yet filed for you. If he files an I-130 petition, the date of filing will be known as the “priority date”. You will not be eligible for an employment authorization until you file an application for adjustment of status. That application cannot be filed until your priority date is reached on the Monthly Visa Bulletin. As you state, this will be a numbers of years.
You may wish to consider an H-B visa, and there may be other options as well. I suggest you consult with an immigration lawyer to review those options.
Michael Shane and Evan Shane Immigration Lawyer