Hiring an Engineer with a Sponsored Green Card - Legal Considerations

Dear Sophie: Navigating Green Card Transfers for Engineers

This is another installment of “Dear Sophie,” a column dedicated to addressing immigration questions specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these questions. She states that they are crucial for disseminating knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie invites you to submit them for consideration in her next column.

Extra Crunch subscribers gain exclusive access to weekly “Dear Sophie” columns. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

We are preparing to make an offer to an engineer who has been legally working in the U.S. under an H-1B visa for nearly five years. Her current employer is currently sponsoring her for a green card based on the EB-2 category. Our startup is eager to bring her on board as a senior engineer.

What implications does this have for her ongoing green card application? Is it possible for us to assume responsibility for the sponsorship?

— Recruiting in Richmond

Dear Recruiting,

Congratulations on identifying a strong candidate for your open position. The ability of your startup to take over the EB-2 green card process—or the necessity of initiating a new application—is contingent upon the stage of her current application and the similarity between the offered role and her present position.

I recommend listening to a podcast featuring my colleague, Gilberto Orozco Jr., an associate attorney at my firm, and myself. We discuss the American Competitiveness in the 21st Century Act—often referred to as AC21—including the concept of “green card portability.”

The AC21 legislation, enacted in 2000, provides certain flexibilities to international professionals during the green card process. This includes the ability to change employers and potentially extend an H-1B visa beyond the standard six-year limit, preventing the need to depart the U.S. while awaiting green card approval.

To determine the best course of action, it is highly advisable to consult with a knowledgeable immigration attorney. They can assess your specific circumstances and objectives to identify the most suitable options.

Understanding the EB-2 Green Card Process

As previously noted, the impact of a job change on a green card application is contingent upon the stage of the EB-2 green card process the applicant currently occupies. It's important to recognize that there are two distinct EB-2 pathways, each with its own procedural nuances.

• The EB-2 green card route for professionals holding advanced degrees.
• The EB-2 National Interest Waiver (NIW) option, designed for individuals demonstrating exceptional ability.

Securing an EB-2 green card typically necessitates employer sponsorship and involves a three-stage procedure.

1. First, obtaining PERM (Program Electronic Review Management) labor certification from the U.S. Department of Labor.
2. Next, submitting a green card petition – specifically Form I-140 – to U.S. Citizenship and Immigration Services (USCIS) for review and approval.
3. Finally, achieving USCIS approval following the filing of an adjustment of status application (Form I-485) to become a permanent resident. This can be filed concurrently with Form I-140, dependent on the availability of an EB-2 green card number based on the applicant’s country of origin, and potentially includes an interview with a USCIS officer or processing through consular services abroad via the State Department.

A change in employment during this process can have different implications depending on which step is underway.

The EB-2 NIW green card application, conversely, is streamlined to two steps and bypasses the need for PERM labor certification.

The EB-2 NIW is also notable as one of only two green card options – the other being the EB-1A for individuals of extraordinary ability – that doesn't require employer sponsorship, allowing individuals to self-petition.

Key Differences in Application

The core distinction lies in the requirement for employer sponsorship. The standard EB-2 necessitates a sponsoring employer, while the EB-2 NIW allows for independent applications.

Understanding these differences is crucial for navigating the complexities of the EB-2 green card system effectively.

AC21 Green Card Portability Provisions

Startups may be able to continue a candidate’s existing green card application without needing to file a new I-140 petition, provided certain conditions are met.

• The I-140 petition filed by the candidate’s previous employer must have already received USCIS approval.
• At least 180 days must have elapsed since USCIS received the I-485 application submitted by the prior employer.
• The position offered by the new employer must be comparable to the candidate’s previous role.

Should these criteria be satisfied, the startup can assume responsibility for the green card process. This is achieved by submitting an I-485, Supplement J, application for adjustment of status.

This filing can occur either before or after the candidate commences employment with the new company. The I-485J form necessitates that the startup demonstrate the new job offer serves as a valid continuation of the existing green card proceedings.

Furthermore, the startup must prove the new position is either identical or substantially similar to the one previously held by the candidate.

Factors Considered by USCIS

When evaluating job similarity, USCIS takes several factors into account:

• The alignment of the Department of Labor’s Standard Occupational Classification (SOC) codes for both positions.
• A detailed comparison of the job duties and responsibilities.
• The required levels of education, training, licenses, certifications, experience, and skills.
• A review of the offered wages for each position.
• Any other relevant and credible evidence presented.

If a candidate departs from their current employment before the I-140 petition is approved or prior to 180 days elapsing since the I-485 application was received, the green card process generally needs to be restarted.

However, if the I-140 petition has been approved, the candidate can preserve their priority date for future green card petitions. This is particularly valuable for individuals originating from India or China.

These individuals often encounter extended waiting periods for green cards due to annual per-country limitations.

H-1B Visa Extension Options

For candidates with a pending I-485 application, the American Competitiveness in the Twenty-first Century Act (AC21) provides a pathway for startups to extend an H-1B visa without the typical six-year restriction. This extension is available while the green card application is being processed.

This is especially crucial given the continued closures of many U.S. embassies and consulates, which are impacting routine visa and green card procedures due to the ongoing pandemic.

Extension Criteria

An H-1B extension can be granted in three-year increments if the candidate’s I-140 petition has been approved by USCIS, but their priority date is not yet current for filing an I-485.

These extensions will continue to be issued until USCIS reaches a decision regarding the I-485 application.

Furthermore, a three-year H-1B extension is possible if the candidate transitions to a new employer after their I-140 has been approved.

In situations where at least 365 days have elapsed since the filing of a PERM application or an I-140 petition, one-year extensions may be obtained.

Addressing Approaching Expiration Dates

If the H-1B visa is nearing its six-year limit before the PERM application reaches the 365-day mark, several options may be available, depending on the specific timeframe.

These options include recapturing time spent outside the United States or temporarily pausing work under the H-1B status during the 60-day grace period.

It is recommended to consult with an immigration attorney to explore all available possibilities.

Additional Resources

• Podcast: Immigration Law for Tech Startups is available on all major podcast platforms.
• Contact: Sophie can be reached directly through Alcorn Immigration Law.

Best wishes for your endeavors!

Sophie

Do you have a question for Sophie? Submit it here; we reserve the right to edit submissions for clarity and length.

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please refer to our full disclaimer.