Here’s another edition of “Dear 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 work in talent acquisition for a rapidly scaling startup, and I’m looking for an edge to onboard top engineers.
I’m seeing many stellar candidates who are about to graduate from a U.S. university and who mention programs like CPT, OPT and STEM OPT. How do we recruit and retain them?
— Rigorous Recruiter
My fiancé and I got engaged early this year. We’re planning a wedding for later in the year when my family can travel to the U.S. from Estonia, where I’m originally from. I’ve been living and working in the U.S. for almost two years on an L-1A visa.
My company is sponsoring me for an EB-1C green card, but the process has been slow. I’m thinking about getting a green card through my spouse when we’re married.
Is there anything in particular that I should keep in mind? Also, would it be a problem if I keep my maiden name after my fiancé and I get married?
— Fantastic Fiancée
Congratulations on your engagement!
My law partner, Anita Koumriqian, and I recently chatted about how our first clients as new immigration lawyers were in the process of obtaining marriage-based green cards, and the joy that supporting couples brings us! On our podcast, we also talked about the K-1 Fiancé(e) Visa. Take a listen!
I can understand why you may be considering alternative green card options since one of the requirements of the EB-1C green card for multinational transferee executives and managers is you must have been employed with your multinational company outside of the U.S. for at least one of the last three years and there’s no premium processing yet. Since this particular category is company-specific, it can make changing companies challenging.
As always, I recommend consulting an immigration attorney who can discuss your options based on your particular situation and goals, as well as help you through the marriage-based green card process and accompany you and your husband to the green card interview if you decide to take that route.
Can I keep my maiden name?
Yes, you can keep your maiden name! This should have no impact on your prospects for a green card through marriage. The key to a marriage-based green card is demonstrating that you married for love, not a green card — a “bona fide” marriage in legal terms. You will have to demonstrate that your marriage is in good faith and that you’re braiding your lives together.
The immigration officer evaluating your case will look for evidence such as photos from your wedding, a lease agreement or a mortgage loan signed by both of you, your 401(k) plans that list each other as the beneficiary, a joint bank account that’s frequently used to pay for household expenses, automobile or homeowners insurance policies listing both of your names, photographs and other possible evidence of your good faith marriage.
Supporting you to compile these documents to provide a compelling petition and application is one of the jobs of your immigration attorney. Plenty of people who have kept their last names in marriage get approved all the time; there are many ways to show the bona fides of your marriage.
Benefits of a green card through marriage
As you probably know, both a U.S. citizen and a U.S. permanent resident are eligible to sponsor a spouse for a green card. The biggest benefit of getting a green card through marriage is that it can be much quicker than getting an employment-based green card such as an EB-2 or EB-3, which require you to go through the PERM process, or possibly also the EB-1C. When marrying a citizen, you’re considered an “immediate relative” and the Visa Bulletin becomes irrelevant.
Moreover, premium processing is not yet an option for EB-1C green card petitions. (With premium processing, U.S. Citizenship and Immigration Services — USCIS — guarantees it will make a decision on an application or request additional evidence within 15 business days of receiving the application.)
Furthermore, an EB-1C often comes with lengthy time requirements as you must have worked for the company for at least a year abroad before qualifying. In addition, AC21 portability is limited to the same or similar occupation after 180 days have passed after your I-485 was filed.
Once you’re married, your spouse can file Form I-130 (Petition for Alien Relative), which establishes your relationship with your spouse and is the first step in the family-based green card process. Currently, for marrying a citizen or permanent resident, it’s possible to file Form I-485 at the same time, which is called concurrent processing.
Assuming you were born in Estonia — not China or India — your employer could also file Form I-140 (Immigrant Petition for Alien Worker), the employment-based green card equivalent to Form I-130 and Form I-485 concurrently.
Individuals born in China or India oftentimes face long wait times to file Form I-485 to register their permanent residence and receive a green card due to the numerical and per-country quotas the U.S. places on all employment-based green cards and many family-based green cards. Green cards for the spouses and dependent children of U.S. citizens and permanent residents and green cards for the parents of U.S. citizens are not subject to any quotas.
Another factor for your consideration is that a marriage-based green card can require a lower financial investment than an employment-based green card and less paperwork. We’ve had some clients whose employer has agreed to cover all or a portion of the legal and filing costs for the quicker marriage-based green card.
Drawbacks of a green card through marriage
Despite the quicker process, some of our clients say they want to avoid getting a green card through their spouse. Some say it’s because they want to get a green card based on their own merits. Others say they don’t want to put any additional stress on their marriage.
If you apply for and receive approval from USCIS for a green card less than two years after you and your husband get married, you will receive what’s called a conditional green card, which is valid for only two years, not 10 years like a full-fledged green card.
So getting those conditions on your green card will require some additional work: At least 90 days before your conditional green card is set to expire, you and your husband must submit Form I-751 (Petition to Remove Conditions on Residence) to USCIS and show that you remain in the same, committed, bona fide marriage. I recommend filing Form I-751 as early as possible in the permitted window given the backlogs at USCIS.
If you decide to pursue a marriage-based green card, make sure to get married and file far enough in advance before your L-1A visa expires and work with an immigration attorney to ensure that you’re maintaining your ability to live and work legally in the United States.
Keep in mind that USCIS continues to be severely backlogged on all cases due to the pandemic. Moreover, most U.S. embassies and consulates remain mostly closed and many are only processing emergency visas and green cards. If only reuniting for love and marriage were considered emergencies!
All my best,
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 “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear 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!