Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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Dear Sophie:
I was recently laid off but found another position at a growing biotech company. My new employer just submitted the H-1B petition before the end of my grace period. I would like to stay permanently in the United States. How long do I have to apply for a green card?
If my employer isn’t willing to sponsor me, I heard I can self-petition for an EB-1A or EB-2 NIW green card?
—Hopeful in Hayward
Dear Hopeful:
Congrats on your new job offer and H-1B transfer. Many companies are hiring talented individuals right now. Every company has the right to their own immigration sponsorship policy, so it can be worthwhile to discuss this going into your new role to make sure that everybody’s on the same page as to how things can unfold with respect to your green card.
In order to get a green card through employment, a company can sponsor you in the EB-1, EB-2 and EB-3 categories, or you can self-petition. For more tips on sponsoring yourself without an employer with the EB-1A and EB-2 NIW green cards, you can check out this overview and how to prepare.
At a very high level, for most people to maintain their ability to work at a U.S. company after their sixth and usually final year in H-1B, the first one or two parts of the process should be submitted at least one year before the H-1B expiration.
H-1B status is valid initially for three years and can usually be extended for up to a total of six years. Sections of a law called AC21 can make you eligible for additional extensions, such as if your I-140 green card petition was approved, but you’re waiting for your priority date on the Visa Bulletin to become current, or if your PERM labor certification was filed at least 365 days before.
If you are outside the U.S., it’s possible to be sponsored by a company for a green card and you don’t need an H-1B or any other type of visa first, and there’s no requirement that you currently or previously worked for this company that is sponsoring you. Obviously though you would want to talk about the pros and cons of such a strategy with an immigration attorney before proceeding, and if you were born in China or India there may be very long wait times.
Depending on which green card best fits your qualifications, a company may need to file for PERM, a labor certification, from the U.S. Department of Labor. PERM is typically required in the EB-2 and EB-3 categories. Labor certification requires an employer to commit to paying you at least the prevailing wage based on your position and geographical location.
PERM might be affected by COVID-19 and layoffs at several companies. This process involves your sponsoring company recruiting for your position to see if any qualified American workers are available to fill it. If the company has laid off workers in a role similar to yours in the same similar geographic area within the last six months prior to filing, they need to notify them to see if any are able, willing, qualified, and available to take their jobs back before they can file the PERM certification for you. Before the COVID-19 pandemic, the Labor Department took about seven months to make a decision on labor certification applications, but things are in flux right now.
Green cards that don’t involve PERM include EB-1, such as EB-1A for individuals with extraordinary ability, EB-1B for outstanding professors and researchers, EB-1C multinational managers and executives, and EB-2 National Interest Waiver (NIW).
If your employer is unable to sponsor your green card, you can transfer your H-1B to another employer. Or you can file for an EB-1A or EB-2 NIW green card without an employer, by yourself, whether you are inside or outside of the U.S.
Larger established companies tend to be more likely to sponsor individuals for green cards. The Labor Department’s Office of Foreign Labor Certification identifies the top employers requesting PERM labor certification—the first step for most green card applications—in its annual reports. In addition, a few websites compile OFLC data in a searchable format, such as immihelp, RedBus2US.com, and VisaDoor.
When you transfer your H-1B to a new employer, the clock on your H-1B end date does not reset. Your H-1B will still expire after a total of six years in H-1B status with all employers in the U.S. you can recapture dates when you were outside the U.S. That means if you’re on year four of your H-1B, you will have two years left when you transfer your H-1B to your new employer. Make sure to factor this into your consideration when transferring to a new employer seeking a green card.
If you decide to pursue a green card on your own based on your accomplishments and goals, you can consider the EB-1A and EB-2 National Interest Waiver (NIW). The EB-1A green card for those with extraordinary ability requires that an individual has received a major, internationally-recognized award, such as a Nobel Prize, or meets at least three of the following criteria.
Here they are written in a more startup/tech specific way based off of my experience:
- Received a nationally or internationally recognized prize or award, such as a research grant, major funding from a VC or win an award such as Startup Battlefield at TechCrunch Disrupt
- Is a member of an exclusive organization that requires outstanding achievements in your field or is otherwise difficult to get into, such as an invite-only or application based group for entrepreneurs or being an advisors at different incubators or accelerator programs
- Profiled in a professional or trade publication or major media, such as having major media or tech media discuss you, your accomplishments, and your work, like a TechCrunch article
- Judged the work of others, such as peer review manuscripts, startup pitch competitions or hackathons
- Made significant contributions in science, education, business, art or sports, such as a business idea, invention, patent or education software for distance learning that help push your field forward
- Written articles that have been published, such as writing in scientific journals or newspapers or magazines to become a thought leader
- Plays a leading role in a distinguished organization, such as being a founder or CEO
- Commands a high salary or compensation compared to others in your field – this can relate to the valuation of your startup, not just your income
- Work has been displayed or showcased, usually in the art field
- Work has commercial success, usually in the arts
The EB-2 NIW doesn’t have as narrowly-focused criteria. It’s based on how you show your work has substantial merit and is of national importance, such as COVID-19 research. The type of evidence that makes for a strong EB-2 NIW petition includes letters of reference from experts in your field, published articles, contracts, licenses, patents, and grants.
Remember, you have a lot of options. And you don’t qualify to self-petition a green card now, you can always work your way to the point of qualifying through your successes and accomplishments.
All my best,
Sophie
Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!
