H-1B Transfers & Green Card Sponsorship - Ask Sophie

Dear Sophie: Navigating Immigration for Tech Talent

This is another installment of “Dear Sophie,” a resource dedicated to addressing immigration concerns relevant to the technology sector.

According to Sophie Alcorn, a Silicon Valley immigration lawyer, the inquiries received are instrumental in disseminating crucial information. This knowledge empowers individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in human resources, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome for consideration in a future column.

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Question: H-1B Transfers and Green Card Sponsorship

Dear Sophie,

Our startup is facing significant hiring challenges and is encountering numerous engineering candidates who are currently holding H-1B visas. These candidates are seeking opportunities for H-1B transfers and eventual green card sponsorship. What course of action should we take?

— Baffled in the Bay Area

Answer: Prioritize Green Card Sponsorship

Dear Baffled,

Sponsoring international professionals for green cards is a highly recommended strategy. I’ve discussed this extensively in a podcast, detailing how to recruit international professionals already present in the U.S. through H-1B visa transfers and leveraging green card sponsorship as a key employee benefit.

The current, substantial deficit of skilled tech professionals within the U.S. is empowering candidates to demand more competitive compensation.

Consequently, companies are increasingly utilizing green card sponsorship as a valuable incentive to both attract and retain highly qualified international talent.

Here's a breakdown of key considerations:

• Attraction: Green card sponsorship significantly enhances your company’s appeal to international candidates.
• Retention: Offering this benefit demonstrates a long-term commitment to valued employees.
• Competitive Advantage: In a tight labor market, sponsorship can set you apart from competitors.

Investing in the immigration process for your international employees is an investment in your company’s future.

Green Card Sponsorship: A Competitive Advantage

For businesses aiming to stay competitive in today’s market, offering green card sponsorship is increasingly vital. Recent data from Envoy’s 2021 Immigration Trends Report indicates that a substantial 74% of employers have sponsored individuals for permanent residency, representing the highest figure recorded in the past six years of the survey.

A proactive approach to sponsorship is becoming the norm. Instead of delaying the process, 58% of employers now initiate green card applications during the employee’s initial year on an H-1B visa.

The Importance of International Talent

The vast majority of companies – 96% – recognize the significance of attracting international talent as a core component of their overall talent acquisition strategies.

Offering green card sponsorship demonstrates a company’s dedication to its workforce. It signals a willingness to invest in employees and establish a lasting professional relationship.

Expanding Sponsorship Benefits

Employers can further enhance their appeal by covering the costs associated with green card applications for family members. This includes applications for spouses and children, as well as employment authorization for spouses.

Considering coverage for marriage-based green cards as a third-party payor is also a strategic move. These applications typically require approximately one-third of the time and financial investment compared to employment-based options.

Notably, many marriage-based green cards are exempt from annual quota limitations.

• Competitive Edge: Attract and retain top talent.
• Employee Investment: Show commitment to long-term growth.
• Cost-Effective Options: Explore marriage-based sponsorship.

By embracing comprehensive green card sponsorship programs, companies can position themselves as employers of choice in a global talent landscape.

H-1B Visa Transfers are Currently the Predominant Method of Hire

The ongoing closure of many U.S. embassies and consulates globally, a consequence of the COVID-19 pandemic, is significantly impacting visa processing. Consequently, the majority of companies are focusing on recruiting international professionals who are already present within the United States, holding H-1B visas sponsored by alternative employers.

In such instances, a prospective employer is required to submit a petition for an H-1B transfer for the individual. Further details regarding the H-1B transfer procedure can be found in a prior "Dear Sophie" article.

Frequently Asked Questions from Employers

Employers consistently pose several key questions concerning the H-1B transfer process. These inquiries typically center around the following points:

• What types of inquiries should be directed to potential employees during the interview stage?
• What level of risk is associated with transferring an H-1B visa to a new employer?
• What is the typical timeframe for an H-1B transferee to commence employment with our organization?

Let's explore these questions in detail.

Understanding these aspects is crucial for a smooth and compliant H-1B transfer process.

Essential Questions for H-1B Transferees

During the recruitment process, inquiring about an applicant’s need for immigration sponsorship is generally acceptable. Should a candidate indicate such a need, gathering specific information is crucial.

Key Areas of Inquiry

Several key details should be explored to understand the candidate’s immigration situation fully. These questions help assess the complexity of the transfer process.

• What is your country of origin?
• Could you please describe your current visa classification?
• What is the total duration you’ve held this visa, and when is its expiration date?
• Has a previous employer initiated a green card application on your behalf?

Further Investigation

If a prior green card process exists, understanding its progress is vital for a smooth transfer. Additionally, addressing any potential immigration concerns proactively is essential.

• If applicable, at what stage of the green card process were you when it concluded?
• Have you encountered any challenges or issues related to your immigration history?
• Are there any family members who would need to be considered as part of your immigration process?

Important Note: It’s crucial to ensure all inquiries comply with legal regulations regarding immigration-related questions during the hiring process. Maintaining a consistent and non-discriminatory approach is paramount.

Gathering this information allows for a comprehensive evaluation of the H-1B transfer process and helps ensure a successful transition for both the candidate and the organization.

Understanding the Risks and Timelines of an H-1B Transfer

Generally, an H-1B transfer presents a relatively straightforward process, provided the new employer is capable of meeting the candidate’s salary expectations and the position offered is a professional one. This type of transfer is considerably less precarious than initiating a new H-1B petition, as it bypasses the need for participation in the H-1B lottery.

However, an H-1B transfer still necessitates the submission of a Labor Condition Agreement to the U.S. Department of Labor, alongside an H-1B application to U.S. Citizenship and Immigration Services (USCIS). Refer to prior guidance on constructing a robust H-1B petition for detailed insights.

Flexibility in Start Dates

Due to the prospective employee already being present within the United States, the commencement date is often adaptable. The quickest route to employment for an H-1B transferee involves beginning work immediately upon USCIS receipt of the transfer application.

This accelerated approach, while expedient, carries inherent risks. Should USCIS deny the application, the employee would likely be required to depart the U.S. and seek re-entry with a valid visa – a process complicated by current COVID-related restrictions.

A more conservative strategy involves establishing a start date contingent upon the H-1B transfer’s approval, allowing the employee sufficient time to provide appropriate notice to their current employer.

Key Considerations for Employers

• Ensure the offered salary meets or exceeds the prevailing wage.
• Verify the role qualifies as a professional occupation.
• Understand the implications of an early start date versus a post-approval start date.

Careful planning and adherence to regulatory requirements are essential for a successful H-1B transfer.

Understanding the Green Card Application Process

The H-1B visa typically has a validity period of six years, initially granted for three years with the possibility of a single three-year extension. However, if an I-140 petition has been approved by the H-1B visa holder’s employer, an extension beyond six years may be possible.

This extension is contingent upon the individual awaiting the availability of a green card number to submit an adjustment of status application (Form I-485). It allows continued employment while the green card process progresses.

PERM Labor Certification and Green Card Filing

Certain green card categories necessitate employers to obtain PERM Labor Certification from the Department of Labor. Approval of the PERM application is a prerequisite before submitting the green card application to USCIS.

If a transferee’s PERM application hasn’t been certified, the green card process must be initiated anew. This means restarting the process from the beginning with the H-1B transferee.

However, if an I-140 has already been approved, but the priority date for filing Form I-485 isn’t yet current, the green card process can be restarted with a new PERM application.

Importantly, the individual will retain their original priority date – their place in line for a green card – during this restart.

Job Changes During the Adjustment of Status Process

Individuals who have had their I-140 approved and have a pending Form I-485 application for at least 180 days have some flexibility. They can change jobs without needing to file a new I-140.

This is permissible as long as the new position is substantially similar to their current role. This provision allows for career advancement while maintaining their green card application status.

For a more in-depth discussion, consider listening to my podcast episode dedicated to the green card process.

I wish you success in your recruitment endeavors!

Sophie

Do you have a question for Sophie? Submit it here. We maintain 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 review our comprehensive disclaimer. You can reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all popular podcasting platforms. She is currently accepting applications from those interested in being a guest!