Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
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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:
- EB-2 Green Cards for Members of the Professions Holding Advanced Degrees.
- EB-2 Green Cards for Persons of Exceptional Ability.
- EB-3 Green Cards for Skilled Workers, Professionals, and Other Workers.
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!
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