Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, 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.
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My startup is hiring. A leading candidate for one of the positions has an H-1B visa and has been waiting for an EB-2 green card for more than four years. This will be the first time our startup will navigate immigration.
Can you explain the H-1B visa and EB-2 green card transfer process? When do you stick with EB-2? The “Visa Bulletin” changed?
— Curious Co-Founder
Greetings from Disrupt SF! Last week the U.S. Department of State (DOS) published the Visa Bulletin for October. It’s significant because October 1 marks the start of the new federal fiscal year, FY 2024. In FY 2024, about 165,000 new employment-based green card numbers will be available.
Many green card categories will advance or at least remain the same this October. The great news is that the U.S. Citizenship and Immigration Services (USCIS) announced it will accept employment-based adjustment of status (Form I-485) based on the date of filing, which is later than the final action date and will enable more people to take the final step in their green card process. For example, the date for filing for adjustment of status for an EB-2 category green card for individuals born in India is May 15, 2012, while the final action date for individuals in the same category is January 1, 2012, so somebody who got a priority date of May 15, 2012, would now be able to file their I-485.
Because getting the timing right for an H-1B transfer along with green card sponsorship can be tricky, I suggest working with an immigration attorney to help you devise a timely immigration strategy for your startup’s prospective hire.
Let me start by giving an overview of the H-1B specialty occupation and the EB-2 green card for individuals with an advanced degree or exceptional ability.
The big picture
Thanks to the American Competitiveness in the 21st Century Act of 2000 (AC21), individuals facing a delay in their ability to file for adjustment of status (Form I-485), which is the last step in the green card process, have some flexibility to change jobs or employers while waiting for their green card. AC21 also allows an employer to renew an employee’s H-1B visa beyond the maximum six-year stay in the U.S. if the individual is at certain stages of the green card process.
Individuals who have an approved employment-based green card petition (Form I-140) and have been waiting for more than 180 days to file Form I-485 or are waiting for a decision can change jobs and retain their priority date for the EB-2 green card if the new job is the same or similar. (The priority date determines the individual’s place in line for a green card number and ability to file Form I-485.)
Your company as the new employer does not even need to file a new Form I-140 for the prospective hire! There is another form called an I-485J that your immigration attorney will prepare for you. Otherwise, if your company had to pursue another EB-2 green card, that would mean going through the costly and time-consuming PERM labor certification process.
I will discuss an alternative to the EB-2 green card. But first, let’s examine the process of transferring the H-1B, which requires careful planning since the H-1B holder has already been in the U.S. beyond the six-year limit and requires the previously approved I-140 green card petition to continue renewing the H-1B.
The H-1B transfer process
Your company must do a few things before proceeding with the H-1B transfer. If your company is a new startup, your attorney must get your startup’s Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification.
Next, your attorney must file a Labor Condition Application (LCA) with the Department of Labor (DOL) to verify that your startup will pay the H-1B transfer candidate the prevailing wage based on the job and geographical location of the job. There are also protections for American workers. Various documents about the job must be posted either digitally and/or physically, depending on whether you have a remote or physical office.
If the LCA is certified by the Labor Department, your startup can submit an H-1B petition to the USCIS. The petition can be filed with premium processing, which carries an additional $2,500 fee and ensures that the USCIS will make a decision or request additional information within 15 days.
If the H-1B transfer candidate has been maintaining valid H-1B status, they can begin working when your startup receives a receipt notice from the USCIS. You and the candidate should keep in mind that the candidate’s H-1B can only be renewed for another three years if the candidate has an approved I-140 green card petition, so timing is important.
The PERM process with the DOL is taking more than a year, and premium processing for the EB-2 green card is not available from the DOL. Additionally, according to the USCIS Check Case Processing Times page, the USCIS is taking up to four months to process EB-2 I-140 green card petitions.
Alternatives to H-1B, EB-2
Sometimes founding engineers and other key hires want to position themselves for an O-1A extraordinary ability visa. Your attorney should be able to offer an assessment. Like the H-1B, the O-1A is eligible for 15-day premium processing. But unlike the H-1B, no LCA is required for the O-1A, and there is no limit on the number of times the O-1A can be renewed. Take a look at this previous Ask Sophie column for details on how to qualify for the O-1A.
If your candidate qualifies for the O-1A, then the EB-1A extraordinary green card, which has most of the same qualifying criteria, may also be within reach. Together, the O-1A and the EB-1A offer a quicker path to permanent residency and a strong recruitment and retention tool.
While your candidate will retain the priority date (which determines a person’s place in the green card line) from when their employer filed for PERM four years ago, the candidate may still face a long wait for an EB-2 green card. Based on how long your candidate has been waiting to adjust their status in the EB-2 category, I can infer that the individual was born in India. (Take a look at this previous Ask Sophie column where I discuss the green card process, priority dates, and the Visa Bulletin.)
The EB-2 category, which includes the EB-2 green card and the EB-2 NIW (National Interest Waiver) green card, has had a cutoff date (been backlogged) for the last 16 years for individuals born in India and China. In other words, the annual numerical and per-country limits mean there have not been enough EB-2 green card numbers for individuals born in India or China. According to the October Visa Bulletin, the date for filing in the EB-2 category for those born in India advanced slightly to May 15, 2012, from May 1, 2012, in September. In China, it advanced to January 1, 2020, from October 8, 2019.
Although the filing cutoff date in the EB-1 green card category for individuals born in India retrogressed to July 1, 2019, from June 1, 2022, according to the October Visa Bulletin, it still appears better than the EB-2 category. For individuals born in China, the cutoff date advanced a few months to August 1, 2022. Since your candidate can use the priority date from four years ago if the job at your startup is similar to the one the candidate currently has, then the candidate would likely be eligible to adjust their status to an EB-1A green card sooner than waiting for an EB-2.
A few months ago, Congressman Raja Krishnamoorthi (D-IL) and Larry Bucshon (R-IN) and 56 of their colleagues sent a bipartisan letter urging the Biden administration to mark all dates for filing employment-based green card adjustment of status applications as “current” in the Visa Bulletin. That would allow all employment-based green cards to be issued regardless of the beneficiary’s country of birth. The letter notes that the Bush administration did just that for employment-based green card categories in the July 2007 Visa Bulletin.
I urge you to contact your representatives in Congress to support this effort — and more importantly, demand that they enact immigration reform that would adjust the number of employment green cards available each year based on labor market conditions, remove the per-country caps on green cards, and stop counting spouses and dependents in the employment-based green card numbers.
Thank you for reaching out to me with your question. All the best to you and your startup as you embark on the visa and green card sponsorship journey. You’ve got this!
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