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’m so worried and stressed about all the layoffs! I’m safe for now, but it has made me realize I need to take control of my own destiny.
Are there any visas or green cards that I can apply for on my own without relying on my employer?
— Silicon Stressed
Dear Stressed,
I applaud you for taking the first step toward determining your own immigration destiny — and gaining peace of mind.
Let me take your question about green cards first, since recent developments impact the timing for the two green cards that individuals can apply for on their own: The EB-1A extraordinary ability green card and the EB-2 NIW (National Interest Waiver). Individuals can apply for either the EB-1A or the EB-2 NIW without an employer sponsor or even a job offer.
Last week, the U.S. Department of State released its Visa Bulletin for December 2022, which shows which green card applications can move forward based on the number of green cards available in each category and the number available to individuals born in certain countries with high levels of immigration to the U.S., such as India and China.
U.S. Citizenship and Immigration Services (USCIS) releases a monthly report that clarifies whether it will accept adjustment of status applications — the final step in the green card process, along with an interview — based on the State Department’s Final Action dates or the Dates for Filing. The USCIS December report, released last week, states USCIS will accept I-485 adjustment of status applications based on the Dates for Filing.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
File for EB-1 NOW!
If you are eligible to apply for an EB-1A green card, you should file ASAP — and file your I-140 green card application and your I-485 adjustment of status concurrently. The reason for the urgency is that even though the EB-1 green card category remains current in December for all individuals regardless of where they were born, that’s expected to change for individuals born in India or China.
Due to high demand for EB-1 green cards and the decrease in green card numbers available this fiscal year compared to the previous one, the State Department is projecting that it will impose cutoff dates for individuals born in India and China. If that applies to you, speak to your immigration attorney now about moving forward quickly.
Each fiscal year, 140,000 employment-based green cards are available plus any unused green cards from the family-based categories from the previous fiscal year. This fiscal year (FY 2023), USCIS estimates there will be 197,000 green cards available compared to last fiscal year (FY 2022), when there were 281,507 green cards. I’ve long advocated for increasing the cap on the number of employment-based green cards available each year and eliminating the per-country cap on employment-based green cards, both of which require action from Congress.
Longer wait time for EB-2s
Individuals born in India were dealt a significant setback in the EB-2 green card category in the December Visa Bulletin: In December, the EB-2 category will retrogress (the cutoff date will move backward) by more than six months to October 8, 2011. That means a green card number is available only to people born in India that have a priority date on or before October 8, 2011. A person’s priority date is the date either their I-140 green card application was filed with USCIS or when the PERM labor certification was filed with the U.S. Department of Labor.
The cutoff date — or the date to file an adjustment of status application — in the EB-2 category for individuals born in China will remain at June 8, 2019, in December. All other countries will retrogress to November 1, 2022, in December.
Focus on boosting your qualifications
Given the long wait times for EB-2 NIW green cards for individuals born in India or China, I suggest focusing on boosting your qualifications so you can meet the criteria for the EB-1A based on extraordinary ability.
Often, individuals I talk with don’t know that they already meet the EB-1A requirements or are super close to doing so. Take a look at this previous Dear Sophie column in which I walk through the requirements for both the EB-1A and the EB-2 NIW green cards.
What you should know about work visas
All work visas — or non-immigrant visas, which allow individuals to only stay temporarily in the United States — are tied to a job and an employer or agent petitioner. That means you cannot apply for a work visa on your own. An employer must sponsor you for a work visa and submit an application to U.S. Citizenship and Immigration Services (USCIS) on your behalf.
I want to ease your mind that if you’re on an E-1, E-2, E-3, H-1B, H-1B1 or L-1 visa and get laid off, you will have a 60-day grace period to remain in the United States to find another job.
You can apply for B-1 business visitor status for yourself through a change of status. Although you won’t be able to work or earn money, you can look for a job, attend conferences, meet prospective investors, incorporate a startup, sign a lease for your business and more. Seeking six months of B-1 business visitor status at the end of your 60-day grace period will extend your stay in the U.S. while you’re awaiting a USCIS decision, giving you more time to find another job or even set up your own company.
In your efforts to take control of your immigration destiny, you might hit a speed bump or two, but it’s all possible! You’ve got this!
— Sophie
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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. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!