Dear Sophie: Can we sponsor an H-1B university researcher for an EB-1B green card?

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.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

Our company is considering sponsoring a job candidate for an EB-1B green card. She currently has an H-1B research position at an American university. How long does the EB-1B process take? What can we do to maximize our chances for approval? Could we sponsor her for more than one green card to improve her chances?

— Passionate in Pleasanton

Dear Passionate,

Thanks for your questions. The situation you describe is complicated, so as always, please consult with an experienced immigration attorney to explore your company’s options in more detail. In a recent podcast, I talk about how tech companies can use the EB-1B green card to attract and retain researchers. In a nutshell, yes, you can hire her, and sponsor her for more than one green card simultaneously. Here’s how.

The time it takes for a candidate to receive an EB-1B green card depends on their country of birth. If your candidate was born in China or India, she faces waiting several years for an EB-1B green card unless she already has a priority date. For candidates born in any other country, the EB-1B green card process could still take close to a year or more even if the I-140 green card petition and I-485 adjustment of status form are filed together or if the I-140 petition is filed with premium processing. Regardless, in order for the candidate to remain in the U.S. to live and to start working for you in the short term while your company pursues an EB-1B green card, your company would need to sponsor her for an H-1B or O-1A in the interim.

Before I go into more detail about the requirements for the EB-1B green card and what it takes to submit a strong EB-1B petition, here are some things to keep in mind:

  • Since the candidate works for a university, she likely has a cap-exempt H-1B, which means that the H-1B was not subject to the annual numerical cap and lottery. Unfortunately, a cap-exempt H-1B can only be transferred to another cap-exempt employer, such as another university, a nonprofit, or a government research organization. Your company will need to sponsor the candidate for a new, cap-subject H-1B by registering her for the lottery next March. If the candidate is selected in the lottery and the H-1B petition is approved, the earliest she can start working for you would be Oct. 1, 2021. Alternatively, we can work with you to explore options for alternative cap-exempt H-1Bs that you can get any time of year.
  • If the job candidate was born in China or India and her current employer is sponsoring her for a green card, she may be able to retain her priority date, or place in line for a green card, when your company sponsors her for one.
  • With limited exceptions, the U.S. has stopped issuing green cards and H-1B visas to individuals outside of the U.S. at least through the end of the year under President Trump’s proclamations, so the candidate should try to remain in legal status in the U.S. without departing.

To sponsor an individual for an EB-1B green card as a private company (and not a university), your company must already employ at least three full-time researchers and show accomplishments in the field of research. Your company must show that the EB-1B candidate has been recognized for exceptional achievement in her or his field of research.

The candidate must have at least three years of research experience and must meet two of the following criteria:

  • Has received major prizes or awards for outstanding achievement.
  • Belongs to associations that require outstanding achievement.
  • Work or research has been written about in professional publications or other major media.
  • Has judged the work of others either alone or while serving on a panel.
  • Contributed original scientific or scholarly research in their field.
  • Authored scholarly books or published articles.

It’s similar to an EB-1A but a little bit easier.

After working with counsel to determine the two qualifying criteria to focus on, make sure your company and the candidate assemble strong, compelling evidence and documentation. Supplement that documentation with letters of endorsement from experts in the candidate’s area of expertise. Keep in mind that U.S. Citizenship and Immigration Services (USCIS) evaluates the EB-1B petition based on whether sufficient evidence is submitted to support two of the criteria and the quality of the evidence that indicates the candidate is outstanding in their field. As usual, any documents in a foreign language must be translated and certified.

Your company will need to include the job offer letter indicating the intention to employ the candidate in a permanent research position in their field in addition to evidence that your company employs at least three researchers and has achieved accomplishments in the research field. These are usually pretty hefty packages of evidence and documents that attorneys assemble.

As with any application or petition, retain clear guidance because small mistakes on the I-140 green card petition can delay or even derail a case. For example, make sure you use the most recent edition of the necessary forms. Make sure the correct pages are signed in blue or black ink by the appropriate parties, keeping signatures inside the box so it can be scanned. Make sure your company submitted the correct filing fee amounts and premium processing fee, if applicable. Submit the application packet to the correct address and make sure it can be tracked.

To answer your last question, yes, your company can sponsor a candidate for more than one green card to improve the chances of receiving one.

Both the EB-1A green card for individuals with extraordinary ability and EB-2 NIW (National Interest Waiver) for individuals with exceptional ability do not require employers to go through the lengthy PERM labor certification process. However, they have rigorous requirements. Check out this overview on those two green cards and how to prepare.

Three other green card options have less stringent requirements than the EB-1A and EB-2 NIW, but require PERM labor certification:

For more details on the PERM labor certification process, check out my podcast on the topic.

Let me know how things turn out.

Good luck!

Sophie


Have a question? 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 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!

Startups – TechCrunch

Dear Sophie: How can we sponsor H-1B transfers and extensions?

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.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

I work in people ops at a startup. We have no experience with H-1B visas. We recently received applications for job openings from a couple of strong applicants who are on H-1B visas with other companies. What should we know about hiring an H-1B visa holder?

One of the job applicants will need to have her H-1B renewed next year. What should we know about filing for a renewal? Are H-1B transfers and renewals still possible given that H-1B visas are no longer being issued at consulates?

—Newbie in Newark

Dear Newbie,

Exciting that your company is hiring. Congrats! Yes, H-1B transfers and renewals are still possible. The only current restriction is that H-1B visas can generally not be issued to people outside the U.S. right now. They were halted through at least the end of 2020 under last month’s executive proclamation.

Startups – TechCrunch

Dear Sophie: Can I bypass H-1B and sponsor a grad for a green card?

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.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

A very bright and promising foreign national who graduated from a U.S. university has been working for our firm and just received a STEM OPT extension. We would like to keep her on after her STEM OPT ends. We registered her in this year’s H-1B lottery, but unfortunately, she wasn’t selected.

Given the challenges of getting an H-1B through the lottery and the #h1bvisaban, how can we bypass the H-1B and potentially sponsor her for a green card?

— Eager in Emeryville

Dear Eager,

Happy to hear you’re willing to sponsor a promising graduate from an American university for a green card. Sounds like you’re interested in exploring the EB-2 or EB-3 green card with the PERM process. For additional resources, feel free to check out my recent podcast on PERM.

Just because U.S. immigration policy often runs counter to retaining the best and the brightest college graduates in the U.S. doesn’t mean there isn’t hope. Some options exist for these talented folks and the companies that want to hire them, even though many employment-based green cards require candidates who are outstanding in their field. Recent graduates often haven’t yet built up their work experience and credentials, but there can be paths forward.

Although it may present some immigration risks to the candidate that should be weighed carefully in collaboration with an experienced business immigration attorney, many employers have been doing as you suggested: sidestepping the H-1B visa and directly pursuing a green card. This is often due to the extremely competitive H-1B lottery and high denial rates for initial H-1B petitions and extensions. Also, a moratorium on all green cards, H-1B, H-2B, J and L visas for individuals currently outside the U.S. is in effect until the end of this year. This now makes it nearly impossible for most employers to sponsor individuals to come to the U.S. unless their work is in the national interest or essential to the U.S. food supply chain.

So, many people are seeking solutions. First, the basics: Because your STEM OPT employee is already in the U.S., and the H-1B lottery now only costs $ 10 to register a candidate, I suggest that your company continue to enter her in the lottery as a backup option in case her F-1 STEM OPT status ends before you can secure her a green card.

The green cards for which most recent graduates would be eligible require the sponsoring employer to go through the PERM labor certification process before filing a green card petition. Separately there are other green cards for extraordinary ability which I’ve also written about.

PERM, which stands for Program Electronic Review Management, is the system used for applying for labor certification from the U.S. Department of Labor . Please speak with an attorney about the timing of this process and consider any risks to your employee’s personal immigration situation given her current F-1 nonimmigrant status.

Labor certification must be submitted to U.S. Citizenship and Immigration Services (USCIS) with EB-2 and EB-3 green card petitions. Labor certification confirms that no U.S. workers are qualified and available to accept the job offered to the green card candidate and employing the green card candidate won’t adversely affect the wages and working conditions of American workers.

Without knowing more about your STEM OPT employee’s background and qualifications, I would surmise that she might be able to qualify for one of these employment-based green cards:

Both of these green card categories require the employer sponsor to go through the PERM labor certification process. Because PERM is a complex process and will determine if you can proceed with sponsoring your employee for a green card, I recommend that you work with an experienced immigration attorney.

In general, PERM requires employers to take these steps:

  • Determine in detail the duties and minimum requirements of the position
  • File a prevailing wage request
  • Go through an extensive recruitment process
  • Get a certification

The duties and requirements of the position should be detailed and typical for your company — not tailored to the green card candidate. These duties and requirements will be used for job posting during the recruitment process.

In more detail, employers must file a prevailing wage request to the National Prevailing Wage Center of the Labor Department. The prevailing wage is determined based on the position, the geographical location of the position and economic conditions. The employer must pay the prevailing wage or higher for the position to ensure that hiring a foreign national would not adversely affect the wages of U.S. workers in similar positions. This process can take a few months.

The most time-consuming of these steps is the recruitment process to determine whether qualified U.S. workers are available for the position. To do that, an employer must advertise the job in two Sunday editions of a local newspaper, submit a job order with the state workforce agency (CalJOBS in California) and file an internal company notice of the filing. Plan ahead with your legal team to consider running some things in parallel to decrease the overall time.

For professional positions, employers need to use three additional recruitment methods, such as using a job recruiting website, an employment firm, a job fair, a posting at a career placement center at a local university or college, or incentives for employee referrals.

The job order with the state workforce agency must run for at least 30 consecutive days. The internal job posting must be up for 10 consecutive business days. Employers must allow 30 days for candidates to apply and interview U.S. workers who apply.

Generally, if there are no qualified applicants, employers then file ETA Form 9089 to the Labor Department. No supporting documents need to be submitted with the form, but the documents must be maintained for five years, especially as there could be an audit. The Labor Department will send a verification email to the employer along with a sponsorship questionnaire, which the employer should fill out within a week of receiving it. It’s important to not miss this email!

The PERM process can take anywhere from three to eight months as long as the Labor Department does not audit your case. The Labor Department conducts two types of audit: random audits and targeted audits. Random audits are done to make sure employers are following the PERM procedure.

Some common reasons for targeted audits could include:

  • The employer recently laid-off employees
  • The candidate appears unqualified for the position
  • The job does not require a bachelor’s degree
  • A company executive is related to the candidate

The Labor Department usually issues an audit notice within six months of receiving the labor certification application, and the employer must respond within 30 days. An audit does not mean an employer’s PERM will not be approved. However, it can add nine to 18 months to the process. If an employer does not respond to the audit notice, the Labor Department will deem the case abandoned, and for any future PERM applications, the employer may be required to conduct supervised recruitment.

Once the Labor Department approves the PERM Labor Certification for that position, you must file the green card petition to USCIS within 180 days. If your employee was born in any country other than China or India and you are sponsoring her for an EB-2 green card, you can file the I-140 green card petition and the I-485 adjustment of status from F-1 STEM OPT to EB-2 at the same time, assuming the “priority date” is still current.

If eligible, your STEM OPT employee could also enter the diversity green card lottery in the fall to increase her chances of getting a green card. Each year, 50,000 green cards are reserved for individuals born in countries that have low rates of immigration to the U.S.

Let me know if you have any other questions. Good luck!

— Sophie


Have a question? 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 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!

Startups – TechCrunch