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.”
My H-1B expires in late May and my employer recently filed an extension. I’m anxious for the results.
Can I add in premium processing and personally pay for it? I’m thinking about self-petitioning an EB-2 NIW green card — what’s the latest on premium processing?
— Hungry in High Tech
Your desires for security and freedom resonate with so many! Some exciting updates from the U.S. Citizenship and Immigration Services on the topics of automatic work extensions and premium processing are just in; it’s wonderful news that USCIS is committed to improving its quality of service. They’ve been backlogged due to the pandemic, funding issues, and paper-based processing, which I recently explained in my podcast on the state of immigration.
The latest on Automatic Extensions of Employment Authorization
USCIS just announced the Automatic Extension of Employment Authorization and Employment Authorization Documents (EADs) for Certain Renewal Applicants, a new final temporary rule that will soon take effect to reduce backlogs and strains on the workforce.
Previously, there was a 180-day automatic EAD extension for certain categories; it will be extended up to 360 days for a total of up to 540 days, from May 4, 2022, to October 26, 2023. This announcement will benefit many categories, such as H-4, L-2, and E-1/E-2/E-3 spouses, as well as asylees and asylum-seekers, TPS holders, and applicants for adjustment of status.
In this year’s H-1B lottery, which closed in March, USCIS received a record 483,927 registrations, which was a whopping 56.8% increase from 2021. Of the 85,000 H-1Bs allocated each year, 20,000 are earmarked for individuals with a master’s degree or higher from a U.S. university. USCIS reported that about 31% of all registered individuals had advanced degrees.
Unlike the annual H-1B lottery registration process, which is digital, actual H-1B petitions are still paper-based. Filing an initial H-1B petition or an extension requires submitting the application form and supporting documents in hard copy to USCIS.
For extensions, beneficiaries of H-1B petitions are automatically work authorized by the I-797 Receipt Notice for the timely-filed Form I-129 petition by the employer, up to 240 days. This is why some employers choose not to invest in premium processing for H-1B extensions.
Peace of mind
However, you are absolutely right that premium processing — a guarantee that USCIS will process an application in 15 days for a fee — can be instrumental for peace of mind, especially when your company and family are depending on you.
It’s possible for the employer to add in a request for premium processing after an H-1B extension has already been filed. Because the H-1B is a work visa that requires an employer sponsor to file an initial or renewal H-1B petition, you would not personally be able to file the request.
If your employer requires premium processing, they cannot make you pay for it. If you want to add it in and they do not require it, you are permitted to pay for it, or the company can cover it. Talk to your employer and their immigration attorney about your goals.
Controlling your destiny
Bravo to you for taking the first steps to take control of your immigration destiny and career! Keep in mind that the EB-2 green card for individuals with an advanced degree or for individuals with exceptional ability both require an employer sponsor. You can self-petition for the EB-2 NIW (National Interest Waiver) green card for individuals with an advanced degree or for individuals with exceptional ability, but not an EB-2 green card involving the PERM process.
A National Interest Waiver requires you to demonstrate that your work is in the interest of the United States — and thus the job offer requirement and labor certification are waived. Specifically, USCIS considers three factors when determining whether a candidate’s work is in the interest of the United States:
- Does the individual’s work have “both substantial merit and national importance”?
- Can the individual “advance the proposed endeavor”?
- Would it benefit the United States to waive the job offer and the labor certification requirements?
A PERM Labor certification requires employers to demonstrate that there are not enough qualified U.S. workers to take the position of the EB-2 or EB-3 candidate and employing the candidate won’t adversely affect the wages and working conditions of U.S. workers. As such, employers are required to file for labor certification from the U.S. Department of Labor for the EB-2 green card and the EB-3 skilled worker green card.
Earlier this year, the federal government made it easier for individuals to qualify for an EB-2 NIW, particularly those who earned a Ph.D. or those working in artificial intelligence or other STEM fields.
Premium processing is currently not available for the EB-2 NIW. However, USCIS recently announced plans to make 45-day premium processing available to more green cards, including the EB-2 NIW green card and EB-1C green card for a multinational executive or manager, but has not yet made it available. The agency stated that it will make this option available sometime before September 30, 2022.
In a recent update, USCIS announced it would make 30-day premium processing available to change of status requests and visa renewals, such as changing to an F-1 student visa or J-1 cultural exchange visa and renewing H-4 visas (for dependents of H-1B visa holders), as well as employment authorization. However, USCIS indicated it will implement premium processing for these categories in fiscal year 2025.
You’ve got this!
Wishing you all the 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!
Also published on Medium.