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 wife and I are from India. I’m a software engineer and have an H-1B visa. My wife has a dependent H-4 visa. The company that sponsored me for the H-1B also sponsored me for an EB-3 green card, which was approved about three years ago but I’m still waiting for a green card number. My wife received her employment authorization and has been working as a doctor since then.
Can she apply for a green card? Will she get a green card faster given her profession? If she applies for a green card, what happens to my green card?
My deepest thanks to your wife for providing healthcare services during the pandemic. I appreciate you, your wife, and all of the individuals who have the grit and determination to start a new life in the United States and make our country strong and vibrant in the process!
Now, let’s dive into your questions!
Can my wife apply for a green card?
Yes, definitely! Your wife can apply for a green card in parallel to your green card efforts. We have many married clients who use this strategy to increase their chances and potentially get a green card faster. We also have several individual clients who apply for two different green cards in parallel. Typically they apply for an EB-1A extraordinary ability green card – and an EB-2 NIW (National Interest Waiver). The EB-1A has a high bar for qualifying but the shortest wait time among the employment-based green cards; the EB-2 NIW is easier to qualify for compared to the EB-1A but usually comes with a longer wait time.
In your wife’s case, the key will be to figure out which green card she would be a strong candidate for – and whether the processing and wait time would be shorter than the remaining wait time for your green card number. An immigration attorney can help determine the best path forward for you and your wife based on your circumstances and her qualifications.
With the importance of healthcare in the United States, your wife may be a strong candidate for the EB-2 NIW. The EB-2 NIW is one of two green cards that don’t require an employer sponsor, which means your wife could self-petition if her employer is not willing to do so. Aimed at individuals whose field of expertise and work is considered to be important to the U.S., the EB-2 NIW does not require the lengthy PERM process. The PERM process is required for the standard EB-2 – for candidates with an advanced degree or exceptional ability – and the green card your company sponsored you for, the EB-3 for skilled workers and professionals.
PERM, which stands for Program Electronic Review Management, is the system used to apply for labor certification from the U.S. Department of Labor. Labor certification is designed to ensure that no U.S workers are qualified and available to accept jobs offered to the green card candidates and that employing the green card candidates won’t adversely affect the wages and working conditions of American workers.
Will my wife get a green card faster?
Even with a three-year head start on your EB-3, the answer to that question is most likely yes, your wife may be able to get a green card faster. As you know, the wait time for an EB-3 green card is particularly long for individuals who were born in India because of the annual limits and the per-country caps on green cards. This is why I have long advocated eliminating the per-country caps on green cards and was thrilled when President Biden listed it as one of his legislative priorities.
As you know, the annual numerical and per-country caps mean not everyone can immediately get a green card, so your priority date determines your place in line for a green card. Your priority date is either the date you or your employer filed a green card petition to U.S. Citizenship and Immigration Services (USCIS) – or the date the Department of Labor accepted your PERM labor certification. Unfortunately, your wife cannot use your priority date from your EB-3 petition to speed up her green card process.
Although USCIS expanded premium processing to EB-2 NIW green card applications, it only applies right now to applications submitted before March 1, 2021. Normally, premium processing means that USCIS will either make a decision or request additional evidence within 15 days. But for premium processing for EB-2 NIW applications, USCIS will have 45 calendar days to either make a decision or request additional evidence instead of the traditional 15 days. Right now the processing time for the EB-2 NIW application is about a year and a half to two years.
According to the Visa Bulletin for July 2022, the cutoff date for green card issuance advanced three months for the EB-2 category but remained the same for the EB-3. If a green card category has a date, which is called the cutoff date, it means the category is oversubscribed for individuals born in that country. In that case, only individuals with a priority date earlier than the cutoff date can get a green card. Click here for more info about how the Visa Bulletin works.
Green card numbers are immediately available in the EB-1 category for all individuals. That, coupled with the fact that EB-1A is eligible for premium processing, means that If your wife qualified and was approved for an EB-1A, she would definitely receive a green card sooner than you.
If your wife qualified for an EB-2 NIW, she would have to follow the green card process in two steps by first submitting her I-140 green card application, and then filing the I-485 adjustment of status once her priority date becomes current.
What happens to my green card?
Nothing! The decision that USCIS makes on one green card petition does not affect the other. If your wife gets a green card before you and you receive a green card through her, your company can stop the EB-3 process and inform USCIS. One consideration – an I-485 denial for a spouse based on one petition might affect an I-485 for another petition.
Thanks for reaching out!
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.
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!