Sophie Alcorn
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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.”
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Dear Sophie,
The engineers that we’re trying to recruit are increasingly requesting that we sponsor them for green cards. I don’t have an HR background, but I’ve been assigned HR duties at our startup.
Can you give me a rundown of the green cards that are available?
Is it possible to sponsor someone for a green card without them getting an H-1B or other visa first? Which green card is the fastest?
— Targeting Talent
Dear Targeting,
With the ongoing and intensifying competition for tech talent in the wake of the Great Resignation, I find myself addressing questions like yours quite frequently. That’s no surprise: Turnover in tech last year was remarkably higher than in health care, according to the Harvard Business Review. Resignations within the tech industry increased 4.5% last year compared to the previous year, while in health care, resignations increased 3.6%.
As you explore this process, consider looking at green cards and other immigration support not only as a way to recruit candidates and retain employees, but as an opportunity to shape your company culture. Now is the time to present your company as one that values innovation, diversity, creativity, inclusivity and the security and well-being of your employees. This will ultimately bring resilience to your company.
Let’s get into it.
Which green card is the fastest?
Of all the employment-based green cards, the EB-1A extraordinary ability green card is the quickest option. This option requires significant proof of accomplishment in your field — which can be a challenge for some (more details below).
The EB-1A is the fastest for two main reasons: It currently allows for Premium Processing, where you can pay $2,500 extra and the government will adjudicate the petition in 15 calendar days, and, for people subject to the India/China-green card backlogs, the EB-1 First Preference green card category always has the most movement and availability.
Good news for green card processing: U.S. Citizenship and Immigration Services just announced that it will be adding premium processing to more categories. This fiscal year, it will be adding a Premium Processing option to both the EB-1C Multinational Manager and Executive green card category as well as the EB-2 National Interest Waiver green card category. In the coming months, USCIS will launch this option: You will be able to pay an additional $2,500, and USCIS will promise to adjudicate your I-140 petition in EB-1C or EB-2NIW in 45 (not 15!) days.
Is it possible to bypass a work visa?
Yes, it’s theoretically possible to sponsor a prospective employee for a green card without getting them a work visa first. However, it’s usually not the most practical strategy for startups that need to hire quickly, unless the candidate already has some other sort of underlying work authorization, like an OPT work permit with a STEM extension.
The wait times for scheduling green card interviews are long due to pandemic backlogs — both at U.S. embassies and consulates and within the United States USCIS. Getting a work visa, such as an O-1 extraordinary ability visa or an H-1B specialty occupation visa, would enable a candidate to start work for your company much sooner than a green card.
What are the green card options?
Most tech startups we work with sponsor their employees for one of the following employment-based green cards:
| Employment Green Cards | EB-1A Extraordinary Ability | EB-2 NIW (National Interest Waiver) | EB-2 with PERM | EB-3 with PERM |
| Who’s eligible? | Individuals with extraordinary ability or achievement in their field. | Individuals whose work is in the national interest who have either exceptional ability in their field or an advanced degree. | Individuals who have either exceptional ability in their field or an advanced degree or equivalent work experience. | Skilled workers with at least two years of work experience or professionals with a bachelor’s degree. |
| Pros | Usually quickest compared to all other employment green cards due to highest immigration priority category. | • Less difficult to obtain than EB-1A (candidate doesn’t have to be at top of field).
• Easier to show national interest through STEM field, economic competitiveness. • Doesn’t require PERM Labor Certification like EB-2 and EB-3. |
• Straightforward eligibility requirements.
• Relatively easy for students without years of work experience or accomplishments to qualify. |
• Straightforward eligibility requirements.
• Relatively easy for students without years of work experience or accomplishments to qualify. |
| Cons | • High evidentiary standard compared to other green cards (candidate must be at the top of field).
• Document-intensive. |
• Although it’s gotten easier, proving work is in the national interest can still be challenging.
• Document-intensive. |
• Requires PERM Labor Certification to show hiring won’t adversely affect wages and working conditions of U.S. workers.
• With PERM, generally takes longer to obtain compared to other green cards. • Generally, long waits for those born in India and China. |
• Requires PERM Labor Certification to show hiring will not adversely affect wages and working conditions of U.S. workers.
• With PERM, generally takes longer to obtain compared to other green cards. • Generally, long waits for those born in India and China. |
| Eligible for Premium Processing? | Yes, for a $2,500 fee. | No, not yet. Expected sometime before September 30, 2022, for $2,500. | Yes, for a $2,500 fee. | Yes, for a $2,500 fee. |
Under immigration law, the government issues up to 140,000 employment-based green cards. In addition to this numerical cap, there is a per-country limit on employment-based green cards of 7%.
Applying for a green card is usually at least a two- or three-step process. Most candidates go through PERM first.
If the prospective or current employee being sponsored for a green card is living outside of the United States, that individual will need to go through consular processing at a U.S. embassy or consulate. The sponsoring company will need to file Form I-140 (Immigrant Petition) with USCIS. If the petition is approved, it is sent to the National Visa Center, which will forward the case to the embassy or consulate once a green card number is available for the candidate.
Companies that are sponsoring prospective employees or current employees already living in the U.S. for an employment-based green card must file Form I-140 (Immigrant Petition). If a green card number is available for the candidate, Form I-485 (Application to Register Permanent Residence or Adjust Status) can be filed with Form I-140. Otherwise, Form I-485 must be filed once a green card number is available.
The monthly Visa Bulletin shows which green card types for candidates from which country can proceed with filing Form I-485 because a green card number is available.
As always, I recommend that you consult with an immigration attorney who can answer your questions and help your company devise an immigration strategy for your employees or a company immigration policy.
All the best to you in assembling your resilient dream team!
— Sophie
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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. “Dear Sophie” is a federally registered trademark. 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!
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