“Dear Sophie” is an advice column that answers immigration-related questions about working at technology companies.
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Dear Sophie:
I work at a startup and my company is sponsoring me for an EB-2 NIW green card because they didn’t want to deal with PERM. I have some unique skills and am helping create a new technology that will support Americans and create jobs.
We just got hit with a massive Request for Evidence. I’m supposed to marry my American fiancé next month, but I really wanted to immigrate based on my own accomplishments. What should I do?
Marrying in the Marina
Dear Marrying,
I get it. We can strive so hard to achieve everything based on our merit and accomplishments, but for tech professionals who are used to success, it can be frustrating when we’re forced to depend on our employer or our beloved for our future. The startup ecosystem rewards fierce independence, and it can feel uncomfortable to ask others for support.
This actually comes up a lot. With more and more millennials and Gen Zers of all genders cherishing feminist values, our immigration system often feels quite antiquated with its emphasis on employer and family sponsorship. We’re used to doing it ourselves and figuring it out, and it takes a lot of heart and faith to put trust in another (including the U.S. government).
In your situation, it’s probably best to do a couple of things, but we have to check a few premises first. Are you maintaining a valid immigration status? Have you physically been in the U.S. for at least 90 days? Are you OK with being stuck inside the U.S. for the next six to nine months? If all answers are “yes,” then I can provide some general education, but please make sure to discuss your own personal situation with an immigration lawyer. Remember, there is no one-size-fits-all solution here.
First, prepare a strategic plan with your employer and legal team about your EB-2 NIW RFE response. Your attorney can prepare a checklist of categories of documents you and the company will need to provide. Hold a strategy call where you all brainstorm additional evidence together. Prepare SMART goals of who will do what by when in advance of the RFE deadline so that your attorney will have a chance to prepare the RFE response with some breathing room. With adequate rigor and thoroughness, you’d be surprised how well even an ominous-sounding RFE can go.
The other thing you can do — you guessed it — is get married. I’ve been the guest at several spontaneous marriage proposals and it’s always an honor to witness them.
I get it: Marriage can feel complicated. Some people are hesitant to mix immigration and marriage, because it can feel funny to rely on your significant other for your ticket to the United States. In any relationship, it’s important to come to the table with not only love but also a clear mutual understanding of how you want your relationship to work and to have a shared set of goals and intentions.
And of course, the government would not issue you a marriage-based green card without a good-faith relationship. That is a clear prerequisite. You have to intend to share a life together, and USCIS can ask to see a lot of evidence to establish that.
However, human love does not have borders. And the way our current immigration laws are written, it is sooooo much easier to get a green card based on a good-faith marriage to a U.S. citizen than even being on the Forbes 40 Under 40 list or winning Startup Battlefield at TechCrunch Disrupt. That may feel unfair, but it’s important to be realistic and strategic when assessing your immigration opportunities.
The duration of a marriage-based green card can differ from an employment-sponsored green card. If your marriage is less than two years old when you are approved, you will receive conditional permanent residence, which is a green card valid for two years, instead of the 10-year full-fledged permanent residence that you would receive through employment sponsorship. At the end of the two years, you must file an I-751 petition to prove to USCIS that your marriage was in good faith and to request a removal of the conditions on your permanent residence. Then you can receive your full-fledged 10-year green card. Once you are a full-fledged permanent resident, understand that this can be a lifetime status. So, even if your green card expires after a decade, your status will not.
If money is an issue standing in the way of a marriage-based green card, consider asking your employer to financially support the process. Companies are eager to attract and retain the best global talent. If benefits now include paying off college loans and pet insurance, it makes sense for startups to consider investing in their employees’ desire to reside in the States. The company wouldn’t have to be involved in the process as a client, and your personal information can remain confidential.
Companies considering this should understand that funding a marriage-based green card for an employee is typically less than half the cost of a PERM and I-140 process, and takes about one year instead of two to three years (or 150 years if you were born in India). Companies with the best retention statistics understand that immigration, instead of being used as a ball and chain to keep somebody stuck there, is actually more effective as a benefit to encourage employees’ life goals, sense of security and job satisfaction.
Now, the general process I’ve outlined here is for people who meet the conditions I mentioned above, not international spouses or fiancés in other countries. There are separate immigration pathways for those whose love crosses borders, such as the K-1 fiancé visa (think “90 Day Fiancé”) and the I-130 and immigrant visa process.
Whatever you do — keep your dream alive. You’re closer than you think!
Be well, do good work and keep in touch.
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.
Do you have a story to share about how you navigated immigration to build your dreams? Apply to guest on Sophie’s podcast about immigration law for tech startups.