by on 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.”
Dear Sophie:
I’m in the U.S. on an H-1B visa. My employer won’t sponsor me for a green card, so I’m looking to apply for one on my own. My husband and I are both citizens of Germany, but I was born in India. I’ve heard that people born in India face waiting decades for a green card. Is there any way to minimize the wait?
— Dedicated in Daly City
Dear Dedicated:
Thanks for your question. It’s great to hear you want to pursue a green card on your own. As always, I recommend that you contact an experienced immigration attorney to help guide you through the green card application and interview process.
I’ll discuss the green card options that don’t require you to have an employer or family sponsor and lay out a few tricks that might support you to minimize your wait time for a green card. For more details on these strategies, listen to my podcast on priority dates.
As you may know, your country of birth — rather than your country of citizenship — is what counts when assessing your eligibility for a green card and how long it will take to get one.
All green card categories — except for those for the spouse, parents and dependent children of U.S. citizens — have a cap on the number that can be issued each year. In addition, these categories have a per-country limit of 7% of the total number available. Because the demand in most green card categories from individuals born in India far exceeds the supply for that country, the wait times are excessively long for individuals who were born there.
For individuals who must wait for a green card, their priority date determines their place in the green card line. If you self-petition for a green card, your priority date is when U.S. Citizenship and Immigration Services (USCIS) receives your initial green card petition.
The monthly Visa Bulletin enables you to check which green card categories for which countries and with which priority dates have reached the front of the line. Green card categories marked with a “C,” which stands for “Current,” means that green cards are immediately available. If a category has a date, which is called the cut-off date, that category is oversubscribed for individuals born in that country, so only individuals with the same priority date or earlier can get a green card.
You would receive a green card faster by “charging” your green card to your husband’s country of birth rather than your own. This is called “cross-chargeability.” To take advantage of cross-chargeability, you and your husband’s adjustment of status applications (Form I-485), the final filing in the green card process, must be paired and submitted together. You can take advantage of cross-chargeability even if you are eligible as the principal green card beneficiary and your husband is the derivative beneficiary.
Applying for a green card while living in the U.S. is generally a two-step process: First, an individual must submit a green card petition. If that petition is approved, then an adjustment of status application is submitted for the individual to change her or his status from a nonimmigrant visa, such as an H-1B visa, to an immigrant visa (green card). One way to speed up the process is to file the green card petition and adjustment of status application at the same time. Known as concurrent filing, it is generally allowed when a green card number is immediately available.
There are only a handful of green cards that you — or your husband — could apply for without an employer or family sponsor:
- Diversity green card
- EB-1A green card for individuals with extraordinary ability
- EB-2 NIW (National Interest Waiver) for individuals with exceptional ability
- EB-5 investor green card
Each year, the diversity green card program reserves 50,000 green cards for individuals born in countries that have low rates of immigration to the U.S. Unfortunately, India is not on the list. However, Germany is. Because India is your birthplace, your husband would need to register for the diversity lottery that’s held every fall, listing you and your children as derivatives. If selected, your husband would have to file a green card petition within the fiscal year that he was selected in the lottery.
The EB-1A and EB-2 National Interest Waiver (NIW) green cards require candidates to demonstrate their accomplishments and expertise and what they will contribute to the U.S. For more tips on sponsoring yourself for an EB-1A or EB-2 NIW, check out this overview on those two green cards and how to prepare.
Individuals who are the very top leaders in the fields of science, arts, education, business or athletics are eligible for an EB-1A. It has the toughest eligibility criteria, which includes receiving a major, internationally recognized award, such as a Nobel Prize, or meeting other criteria that demonstrate you are recognized and highly regarded in your field and how your expertise will benefit the U.S.
The requirements for the EB-2 NIW green card are similar to the EB-1A, but they are not as stringent. For the EB-2 NIW, you must show that your work is considered to have significant merit and national importance in the areas of business, science, technology, health, culture or education and that you have the education, experience and skills to advance the work in your field.
The EB-5 investor green card program is intended to attract foreign investment and create jobs in the U.S. It consists of two investment options: One requires investors to actively manage the company in which they invest. The other, called the Regional Center program, allows investors to take a passive investment role into a business, which is often a real estate project, approved by USCIS. To be eligible for an EB-5 green card, the investor must put up at least $900,000 into a regional center or business located in a rural or high unemployment area or at least $1.8 million in an area located outside of a rural or high unemployment area. In addition to the investment, each regional center or business must create at least 10 full-time jobs.
Generally, applying for a green card in your home country through consular processing is faster than applying for a green card through the adjustment of status process while living in the U.S. However, since the embassy and consulates in Germany remain closed and travel restrictions remain in place due to COVID-19 and President Trump’s moratorium on issuing green cards abroad continues, the safest course is to remain in the U.S. in valid status while applying for a green card.
Keep in mind that if you want to continue to live and work in the U.S. while you apply for a green card, you will need to file a green card petition at least one year before the end of your sixth year in H-1B status if you are seeking H-1B extensions based on I-140s in the EB-1, EB-2 or EB-3 categories. You can extend your stay beyond six years if your green card petition was approved but you’re still waiting for your priority date on the Visa Bulletin to become current.
Best wishes!
Sophie
Have a question? 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 here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!
