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.”
My startup needs to hire an AI expert, and our top candidate has what seems to be a more complicated immigration situation. She’s from India and has been on an H-1B for more than six years. Her current employer applied for an EB-2 green card on her behalf about four years ago through the PERM process. She’s been waiting for a green card number since she was approved and says it may take several more years before she receives it.
She is asking us to transfer her H-1B and green card to our company. Can we do it? Do we have additional options to retain her?
Thanks for reaching out to me with your questions. Before I dive into them, let me provide some context to help you better understand why your prospective hire and thousands of others facing several years if not decades-long waits for a green card.
The United States places numerical and per-country caps on the green cards issued each year. And, unfortunately, penalizes individuals from countries with high levels of immigration, such as India and China. But since 2000, the American Competitiveness in the 21st Century Act—or AC21—has offered at least a modicum of stability to millions of immigrants and their families with the ability to continue working, contributing, and innovating beyond the 6-year typical H-1B maximum. Definitely a step in the right direction! I recently chatted with Stuart Anderson, the executive director of the National Foundation for American Policy (NFAP) and an expert on immigration policy, who helped create and write AC21 – he provided some valuable insights!
AC21 provides some stability
AC21 enables H-1B holders to extend their visa beyond the maximum six-year stay if they are approved for a green card but need to wait for a green card number to become available. AC21 also makes it easier for H-1B holders to switch jobs without losing their place in the green card line if their green card adjustment application has been pending for at least 180 days.
U.S. immigration law limits the total number of employment-based green cards issued each year to 140,000. The number of employment-based green cards issued to the citizens of each country is capped at 7 percent—or 9,800 green cards—annually. I have long been a strong proponent of eliminating the per-country cap to create a market-based approach to immigration.
Now that you have some context, let’s address your questions…
Can an H-1B and green card be transferred?
Yes, your prospective hire’s H-1B visa can be transferred to your company. However, there are several considerations! It sounds like her EB-2 (either advanced degree or exceptional ability) green card cannot be transferred—or “ported”—to your company. To port a green card, the candidate’s Form I-485 adjustment application, which is the last step in the green card process, must have been pending with U.S. Citizenship and Immigration Services (USCIS) for at least 180 days. Your prospective employee is likely waiting for her priority date in the EB-2 category to become current, which means her I-485 has not yet been filed. Her priority date is when her current employer filed for PERM labor certification with the U.S. Department of Labor, which is required for the EB-2 green card (and EB-3 skilled professional green card).
The AI expert’s current employer might send a notice to USCIS to withdraw the Form I-140 EB-2 green card application is filed on her behalf, but as long as at least 180 days have passed since the I-140 petition was approved, your company will be able to extend the candidate’s H-1B for three years. And although the green card sponsored by her current employer cannot be ported to your company, she can retain her existing priority date, which will allow her to retain her place in line if the green card category she pursues also requires a wait.
According to the July 2022 Visa Bulletin, the final action date for the EB-2 category for individuals born in India is Dec. 1, 2014, which means that green card numbers are available only for those individuals whose priority date is on or before that date. Your candidate likely has a priority date sometime in 2018. (To find out more about the Visa Bulletin, listen to my priority dates podcast!)
Transferring the H-1B visa to your company will enable you and your prospective hire to avoid having to go through the annual lottery process. However, you will still need to go through the H-1B petition process, which means you’ll first have to submit a Labor Condition Application to the U.S. Department of Labor for approval and then submit an H-1B Form I-129 to USCIS.
This is a complicated process that requires planning and a backup strategy. Consult your immigration attorney to determine the best path forward given your timing and the AI expert’s qualifications and experience.
Are there other options?
Your company should sponsor the job candidate for another EB-2 green card, which will require you both to go through the lengthy PERM process. A good additional option for consideration is the EB-1A extraordinary ability green card. If your AI expert qualifies for an EB-1A, it can be filed with premium processing by either your company as her sponsor or by your candidate herself. (Premium processing means USCIS will make a decision on the case or request additional evidence within 15 days.) Most importantly, according to the July 2022 Visa Bulletin, the EB-1 category is current for individuals from all countries! That means green card numbers for the EB-1A are currently available for your AI expert, so there’s no waiting in line for a green card number. And best of all, Form I-140 and I-485 can be filed concurrently because the category is current.
If you need to find an immigration solution sooner or if your AI expert doesn’t yet qualify for the EB-1A green card, consider the O-1A extraordinary ability visa rather than transferring the H-1B to your company. Earlier this year, the Biden administration expanded the eligibility of individuals in STEM fields for O-1A visas. Plus, the O-1A is one of the quickest work visa options to obtain, particularly if you opt to pay for premium processing. The O-1A allows for an initial stay of three years and can be extended, and individuals who receive an O-1A typically apply for an EB-1A green card once they build up their experience or an EB-2 NIW (National Interest Waiver) green card.
The EB-2 NIW enables the petitioner to save time and money by avoiding the PERM process by proving that the candidate’s work, abilities, and contributions are in the interest of the United States. Your AI expert would likely have a strong case. Last year in the National Security Commission on Artificial Intelligence’s report to the President and Congress, efforts were recommended that would “advance the development of artificial intelligence, machine learning, and associated technologies to comprehensively address the national security and defense needs of the United States.” Hopefully, this yields some good news for you!
You’ve got this!
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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.
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