Ask Sophie: Any guidance for changing jobs while on an H-1B?

Here’s another edition of “Ask 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’ve been on an H-1B visa with my current employer for about two years, and I want to find a more challenging position with another company.

At a time when more companies are doing layoffs, I feel like I’m at a disadvantage in the job market compared to a few years ago.

Can you please guide me on changing jobs, transferring an H-1B and getting support for my green card?

— Hopeful H-1B Holder

Dear Hopeful,

Congrats on taking the first step toward reaching your goals. Appreciate you reaching out to me for guidance — I’ve got you!

The good news is that many companies are hiring tech talent. Layoffs in the tech sector — mostly by the Big Tech firms — have grabbed the news headlines since last year. But I’ve found that many early-stage startups successfully conserved cash and are now hiring.

In addition, other sectors such as healthcare, professional and business services, government, and hospitality have shown strong job growth and are hiring tech talent. What’s more, federal legislation, such as the CHIPS and Science Act of 2022 and the Infrastructure Investment and Jobs Act of 2021, will lead to increased job creation over the next few years.

Become familiar with your ideal visa and green card route, particularly when pursuing a position at an early-stage startup. Often early-stage founders and ops leaders have limited immigration experience, so knowing how to explain the process is invaluable to pitching yourself.

Tips for managing your H-1B transfer

You’ve already surpassed one of the biggest challenges most people face — being selected for an H-1B visa through the annual H-1B lottery. In the past few years, the chances of being selected in the lottery have decreased significantly. Since you already went through the lottery process, you won’t need to go through it again for an H-1B transfer. Phew!

Your job now is to figure out what it is you want to do. What’s your dream job? Can it qualify as a specialty occupation for H-1B purposes? If it’s not the next natural step on a typical career progression ladder, can you identify the next role that would be a great steppingstone?

Once you’ve identified your next step, then you need to find an employer willing to transfer your H-1B. Expand your network and tap into your existing network for job leads. Ask prospective employers early on in the job interview process whether they’re willing to provide immigration support.

If they aren’t — or if they hesitate — move on. International talent remains highly sought after by employers. According to the 2023 Immigration Trends Report published by Envoy Global, 87% of employers are recruiting and hiring foreign national employees in the U.S.

For an H-1B, the employer is responsible for paying the costs. You can let prospective employers know that an H-1B specialty occupation visa transfer for a startup can typically be accomplished in a month or so, and usually for less than $10,000, including legal and filing fees, which is much less than the cost of a recruiter. The process can take as little as four to six weeks from offer to start date.

It’s definitely recommended that all companies work with an experienced immigration attorney to put together your work visa petition. Startups or companies that have never before sponsored an employer or prospective employee for an H-1B must first get their Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification, which typically takes about a week.

Once that’s done, your new employer’s attorney will file a Labor Condition Application (LCA) with the Labor Department to verify the company will pay you the prevailing wage based on the job and geographical location of the job and that no qualified American worker is available to fill it.

The LCA aims to protect the wages and working conditions of both American and foreign workers. There are posting requirements for various documents that can be accomplished digitally or physically, depending on whether your employer has a remote or physical office. The Labor Department normally processes an LCA in less than two weeks.

If the Labor Department certifies the LCA, employers can proceed with submitting an H-1B petition to U.S. Citizenship and Immigration Services (USCIS). For the fastest processing, employers should file the H-1B Form I-129 petition with premium processing Form I-907, which requires an additional fee to ensure that USCIS makes a decision or issues a request for information within 15 days.

You can begin working for your new employer once your new employer receives a receipt notice from USCIS, but your H-1B will not be automatically extended. Your new employer’s attorney will usually request an extension when they draft your H-1B petition.

The maximum stay in the U.S. on an H-1B is typically six years cumulatively across all employers unless you or your employer begin certain stages of the green card process at least one year before your H-1B is set to expire, but preferably earlier to be safe.

If more than 365 days have passed since you start the green card process or your I-140 green card petition has been approved but you are unable to file an I-485 application to register permanent residence or adjust status because a green card number is unavailable, your employer can extend your H-1B beyond the six-year limit.

Green card options

Another piece of positive news is that companies are increasingly offering green card support for international employees to attract and retain talent. According to the Envoy Global report, 43% of the companies surveyed start the green card application process immediately upon an international employee’s start date, and 83% of companies start the green card application process within one year.

In addition, 83% of companies cover the government fees and legal expenses for the immigration cases of their employees’ spouses and children, and 81% of companies cover all green card–related fees for international employees. Half of those employers require payback for green card–related fees and expenses from the employee if he or she leaves the company within a certain period.

You should ask prospective employers what they’re willing to offer in terms of green card support. You can file for an EB-1A extraordinary ability green card or an EB-2 NIW (National Interest Waiver) green card on your own (self-petition) or an employer can sponsor you. The EB-2 advanced degree green card and the EB-3 skilled worker green card both require an employer to sponsor you and for an employer to file for PERM labor certification, which is a lengthier process.

Keep in mind that the EB-2 and EB-3 employment-based green card categories have been retrogressed for all individuals, according to the latest Visa Bulletin. That means everyone, regardless of their country of birth, will have to wait in line for green card numbers to become available in those two categories.

Green card numbers are available in the EB-1 green card category for all individuals except those born in China and India. But the shortest green card line for individuals born in China and India is in the EB-1 green card category. These numbers will reset in October with the start of the next federal government fiscal year.

If you want to consider self-petitioning your green card in lieu of or in parallel with employer green card sponsorship, first ask yourself whether you can be given duties and responsibilities that will help you meet at least three of the 10 criteria for the EB-1A:

1. You have received nationally or internationally recognized awards for excellence.
2. You have membership in associations in your field that demand outstanding achievement.
3. Articles about you or your work have been published in professional or trade publications or major media.
4. You have been asked to judge the work of others.
5. You have made original contributions of major significance to your field.
6. You have written articles in professional or trade publications or other major media.
7. Your work has been displayed at artistic exhibitions or showcases.
8. You have played a leading or critical role in distinguished organizations.
9. You command a high salary or compensation.
10. You have had commercial successes in the performing arts.

Take a look at this previous Ask Sophie column in which I discuss how to level up your qualifications for the EB-1A green card. If these don’t fit, you can also look at the EB-2 NIW.

You’ve got this!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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!