Ask Sophie™: Can I hire an engineer whose green card is being sponsored by another company?

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 want to extend an offer to an engineer who has been working in the U.S. on an H-1B for almost five years. Her current employer is sponsoring her for an EB-2 green card, and our startup wants to hire her as a senior engineer.

What happens to her green card process? Can we take it over?

— Recruiting in Richmond

Dear Recruiting,

Congrats on finding the right candidate for your role. Your startup’s ability to take over the EB-2 green card process for this candidate — or whether you have to start the green card process from the beginning — depends on where she is in the green card process and whether the position you are offering is similar to her current role.

Take a listen to my podcast in which my colleague, Gilberto Orozco Jr., an associate attorney at my firm, and I discuss the American Competitiveness in the 21st Century Act — or AC21 — including “green card portability.”

Enacted in 2000, AC21 gives international talent in certain situations the flexibility to change jobs during the green card process and the ability to extend an H-1B visa beyond the six-year limit to avoid having to leave the United States while waiting for a green card. I recommend discussing your situation and goals with an experienced immigration attorney to determine your options.

The process for EB-2 green cards

As I mentioned earlier, what happens to the green card process if your candidate changes jobs depends on where she is in the EB-2 green card process. There are two types of EB-2 green cards that have slightly different processes:

• EB-2 green card for advanced degree professionals
• EB-2 NIW (National Interest Waiver) for persons of exceptional ability

The EB-2 green card requires an employer sponsor and has a three-step process:

1. Getting PERM (Program Electronic Review Management) labor certification from the U.S. Department of Labor.
2. Submitting a green card petition (Form I-140) to U.S. Citizenship and Immigration Services (USCIS) for approval.
3. Getting USCIS approval after filing an adjustment of status to permanent residence application (Form I-485), which can be filed along with Form I-140 depending on whether an EB-2 green card number is available based on the candidate’s country of birth, and being interviewed by a USCIS officer or obtaining a green card abroad through consular processing and the State Department.

Filing for an EB-2 NIW green card is a two-step process that does not require PERM labor certification. (The EB-2 NIW green card is also one of two green cards — the other being the EB-1A extraordinary ability green card — that does not require an employer sponsor, meaning individuals can apply for one on their own.)

AC21 green card portability

If all the following applies, then your startup can continue with the candidate’s existing green card process without filing a new I-140 petition:

• USCIS has already approved the I-140 petition that her prior employer filed on her behalf.
• The I-485 application her prior employer submitted has been pending for at least 180 days.
• Your new job is the same or similar to her prior job.

If all of that applies, your startup can take over the green card process by filing an I-485, Supplement J adjustment of status application on her behalf. This can be done before or after she starts working at your company. That I-485J form will require your startup to show that the new permanent job offer she has from your company can take over as the basis for the existing green card process, and that it is the same or similar to the job she held with her previous employer.

When determining whether a job is the same or similar, USCIS considers the following:

• Whether the Department of Labor’s Standard Occupational Classification (SOC) for each job is the same or similar.
• Job duties.
• The education/training, licenses, certifications, experience and skills required.
• Wages.
• Any other credible evidence.

If she decides to leave her current job while her I-140 petition is still pending or before she reaches the 180 days since USCIS received the I-485 application, then you will have to start the green card process for her over again. However, if her I-140 was approved, she can retain her priority date for subsequent green card petitions, which is significant for individuals who were born in India or China and face long waits for green cards due to annual per-country quotas.

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Extending your H-1B

If your candidate has an I-485 pending, AC21 allows your startup to extend an underlying H-1B visa indefinitely under circumstances while awaiting the green card, beyond the typical six-year H-1B limit. This is particularly important since most U.S. embassies and consulates remain closed to routine visa and green card processing due to the ongoing pandemic.

Your candidate’s H-1B can be extended in three-year increments if USCIS has approved her I-140, but her priority date is not current, which means she cannot yet file an I-485. She can receive three-year extensions until USCIS has made a decision on her I-485. Your startup can extend her H-1B for three years if she leaves her current employer after her I-140 is approved. Her H-1B can be extended in one-year increments if at least 365 days have passed since your startup filed for PERM or an I-140 petition was filed on her behalf.

If her H-1B is about to hit the six-year expiration date before her PERM reaches the 365-day filing mark, she may have options depending on how many days she needs. She can recapture any days spent outside of the U.S. or stop working on H-1B during the 60-day grace period. Ask your immigration attorney to lay out all your options.

Wishing you every success!

Sophie

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

The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. 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!