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.”
I am considering leaving my current, steady job to make a leap, taking a job with a big name in tech. I’m excited but nervous.
I’ve been hearing that you can lose your H-1B status if you are laid off. Is there any way I can protect my immigration status while making a bold job move?
– Leap of Faith
Summary: Check the status of the case online at USCIS to make sure there are no issues. If you didn’t do so when you initially submitted the H-1B application, file for premium processing ASAP. Subscribe to our monthly newsletter for the latest immigration news and our upcoming webinars. And register for our 15-part course on what it takes to submit a strong application for an EB-1A extraordinary ability or EB-2 NIW green card. Use code DEARSOPHIE for 20% off.
Full Ask Sophie™ article:
With tweets like this floating around the internet, it’s a really important time to consider your “Plan B” if you’re an immigrant working in the U.S. on H-1B! The good news is that you can bridge your status with a concurrent H-1B to protect yourself in case of a layoff.
Estimates are that over 30k thousand tech workers have been laid off so far this year at companies like Tesla, Netflix, Coinbase, Robinhood, Twilio, and the MANGAs. Brilliant immigrant engineers are overrepresented in the tech sector, with many stuck in perpetual H-1Bs originally hailing from India and China.
This can pose a big problem for people who have made their homes in the U.S. for decades, diligently working, paying taxes, buying houses, and raising their children.
Before you take the leap and move to the new company, it’s important to inventory your personal immigration system around such factors as:
- What is my current status in the U.S. and when does it expire?
- What valid visas do I have in my passport, and when do they expire?
- What are my needs for international travel – can I stay put in the U.S. for now while consulates are still backlogged?
- Where am I at in the green card process – do I need a PERM and has it been filed? Has the I-140 been filed? Do I have a priority date, and what is it? What dates am I looking at for an I-485?
A lot of these are legal questions that require important documents you should collect as evidence of your status, rights, and benefits. You might also need to consult with an immigration attorney independent of your company to know your rights and options.
Moving forward, if you choose to take the leap to a new company, consider obtaining a “concurrent H-1B” at a second company. I often talk about concurrent H-1Bs in the context of obtaining an H-1B if you were not selected in the annual lottery, but this concept has other applications as well.
One method is to get an offer for a second, part-time job to work at another company. If you want to do this, consider consulting with an experienced employment attorney to make sure you’re not violating any promises you made by accepting your offer or signing your confidentiality agreement with your first H-1B employer. Some companies have rules and committees that decide if current employees are allowed to found startups on the side.
Going this route, the second company will need to know about your other full-time job, because their immigration lawyer will have to check the appropriate boxes in the concurrent H-1B petition. You also want to make sure that you’re above board with the terms and conditions of accepting that second job.
The second, concurrent H-1B can be structured for a wide range of hours per week. It can be hourly or salaried.
The benefit of having a second, concurrent H-1B in place is that if you are laid off by the first job with the primary H-1B, instead of only being relegated to the 60-day grace period, your second concurrent part-time H-1B will still be in effect, and you’ll be maintaining valid status in the U.S. while you either look for another job or work out the details with the second company to increase your hours to full time.
Other ways the second current H-1B can come up in your immigration paperwork down the road are that if it’s denied, you would have to list that on subsequent I-129 petitions. Also, the I-485 Adjustment of Status application requires your full employment history. Usually, the law firm for the employer sponsoring the green card completes this document for you when you get to that stage.
Obtaining a second, concurrent, part-time H-1B is a great solution to prevent having to leave the U.S. if you are laid off. More people should consider it!
All my best,
Ask Sophie™: I have an early-stage tech startup
I have an early-stage tech startup. We’re funded, and I haven’t been able to hire as quickly as I would like because competition has been so fierce in the great resignation. Now that we’re seeing some movement in the job market, we think we can probably finally compete for some top engineering talent in our budget. How can I hire people who were recently laid off on H-1B?
— Strategic Sponsor
It’s a great time to hire. You can get somebody’s H-1B transferred to your company in about 4-6 weeks and the candidate can usually begin work as soon as you file the change of employer petition with USCIS. The government just has to receive the petition, they don’t have to adjudicate it yet. If the candidate was recently laid off, the petition must be received by USCIS before the end of the 60-day grace period. The result is usually that your candidate can work for you in H-1B status for three years.
Here’s more information on your options!
File for premium processing
According to the U.S. Citizenship and Immigration Services (USCIS) Case Processing Times page, USCIS is taking anywhere from 1.5 to 5 months to deliver a decision on an H-1B case. The ultimate time frame is dependent on which service center is handling the case. You can use the processing times page to determine if your case is pending beyond the normal processing time; if it is, you can contact USCIS. You can also check the status of the case online here to make sure there are no issues with your case. In general, I highly recommend using premium processing for change of employer petitions.
To file for premium processing, you will need to fill out Form I-907 (Request for Premium Processing Services) and pay the $2,500 fee for H-1B applications. With premium processing, USCIS will have 15 days to either make a decision on the application or issue a Request for Evidence (RFE). If you receive an RFE, I recommend you consult your immigration attorney.
Deciding on green card sponsorship
Offering to sponsor international talent for a green card—and paying for the process—provides peace of mind and goes a long way toward demonstrating that you value your employee and want her to continue working for you! There is no minimum amount of time that you have to wait before sponsoring an H-1B employee for a green card. But if you’re going to sponsor your employee for a green card, I recommend doing so before at least her fifth year of her H-1B. More and more employers are beginning the green card process earlier due to the wait times, particularly for those individuals who were born in India or China.
If your H-1B employee was born in India or China, consider giving her the responsibilities and opportunities that will enable her to build up her qualifications for the EB-1A extraordinary ability green card. Currently, the EB-1A is the only employment-based green card that does not have a wait time of several years for those born in India and China.
I love that you are broadening your scope of hiring to include talent outside the U.S.! I recently chatted with Jamais Cashio, a writer, futurist, and scenario consultant who is also a distinguished fellow at the Institute for the Future. During our talk, he discussed the importance of fostering resilience, flexibility, and empathy to survive and thrive in a ‘BANI’ world. Cashio created the BANI (brutal, anxious, nonlinear, and incomprehensible) framework for understanding the world. He says successful companies should ask themselves, “How should I operate my company if I want to make sure people have a good life outside the company and want to continue working for me? Have I created a place where people can be happy and continue working for me?”
Practicing empathy by removing the stress and cost burden of the green card process from international employees helps reinforce a feeling of security and happiness, freeing them up to focus and be creative and innovative.
All my best,
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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!