Dear Sophie: My EB-2 priority date will be delayed 2 years! What should I do?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Today we bring you answers to three questions about green cards in the EB-1A category for extraordinary ability and multinational managers, EB-2 NIW and with PERM, as well as EB-3 for professionals.

Dear Sophie,

I was so close! My priority date for my EB-2 application to register permanent residence was just nine days from the date listed in the September 2022 Visa Bulletin, but now the date in the October 2022 Visa Bulletin has gone back more than two years!

I’m a software engineer and wanted to get my green card before I change jobs, but now I’m reconsidering my path. The only thing holding me back is I’ve heard that employees will be fined if they leave their employer before they actually get the green card.

What’s your advice?

— Bumped by the Bulletin

Dear Bumped,

I understand how frustrating it is to wait for so long and get so close only to be met with another delay. But don’t fret! The retrogression — the earlier cut-off date — in the Visa Bulletin for October 2022 reflects that there are no more EB-2 immigrant visas left this fiscal year, which ends on September 30. On October 1, the annual green card caps reset!

In early September, U.S. Citizenship and Immigration Services (USCIS) indicated that the annual allocation of EB-1 and EB-2 green cards had been used. Although the current Visa Bulletin lists the EB-1 green card as current for all countries and is therefore accepting applications to register permanent residents (also called adjustment of status) in that category, those cases will remain pending until the start of the new fiscal year on October 1.

USCIS overestimated the number of applications required to meet the annual cap to use all available green cards, which is a very good thing. In the previous fiscal year (FY 2021), more than 200,000 green cards were available but were never issued due to embassy and consular closures and case backlogs during the pandemic.

Given the backlog particularly in the EB-2 category for individuals born in India and China, I suggest you consult an immigration attorney to assess whether you would be a candidate for the EB-1A extraordinary ability visa.

Regarding the fine you mentioned: USCIS does not impose a penalty on employers or employees if a green card candidate changes jobs before receiving a green card. However, your employer can seek reimbursement from you for some green card costs, usually based on some pre-arranged contract prior to starting the green card process. An immigration attorney can help you determine the best path forward if you’re facing this situation.

Keep in mind that your employer must pay for all of the costs associated with filing for PERM Labor Certification — including legal fees and recruitment costs — with the U.S. Department of Labor. This is the first step in the application process for EB-2 and EB-3 green cards. If an employer seeks reimbursement for any of these costs from the employee, that employer could face stiff fines and other penalties.

While a sponsoring employer is required to pay the costs associated with obtaining a work visa for an employee or prospective employee, an employer that is sponsoring an employee for a green card is not required to pay the associated costs for the green card petition, such as legal costs and all filing fees including Form I-140, which is the green card petition, as well as it’s premium processing, and Form I-485, the application to register permanent residence (adjustment of status).

I have heard of instances in which an employer has required an employee being sponsored to reimburse all or a portion of the green card filing fees if the employee leaves the company within a certain period. But that’s the exception, and it’s based on a preexisting written agreement. More often, I see employers offering green card sponsorship as a benefit for recruiting and retaining tech talent by paying for the process not only for current or prospective employees but for their families as well.

In a recent Dear Sophie column, I discussed things to consider during and after the EB-2 green card process when contemplating a job change.

I wish you all the best on your path ahead!

— Sophie

Dear Sophie,

I’m currently on an L-1B, and my employer sponsored me for an EB-3 green card. I only have a year left on my L-1B, so my employer entered me in the H-1B lottery, and I was selected! Will I still retain my EB-3 priority date if I switch to the H-1B?

— Engaged Employee

Dear Engaged,

Congrats on being selected in the H-1B lottery despite the odds! Be sure your employer is tracking the total limits for the number of years spent in L-1 or H-1B status so you don’t hit upon any maximums!

Yes, you will retain your priority date even if you switch from your L-1B visa for intracompany transferee specialized knowledge workers to an H-1B specialty occupation visa! As you know, your priority date for EB-3 is the date your employer filed for PERM Labor Certification from the U.S. Department of Labor.

Since your employer has already sponsored you for a green card, your employer will be able to extend your H-1B status beyond the six-year maximum under the American Competitiveness in the 21st Century Act — or AC21. This law also makes it easier for H-1B visa holders to switch jobs without losing their place in the green card line by keeping their priority date if their green card adjustment application (I-485) has been pending for at least 180 days.

You’ve got this!

— Sophie

Dear Sophie,

I am an author and a motivational speaker, and am 60 years young. Can I apply for an EB-1A green card?

— Successful Speaker

Dear Successful,

Thanks for reaching out and for sharing the wisdom of your experiences with the world!

There is no maximum (or even minimum) age limit for applying for an EB-1A or any other green card. You can also self-petition for an EB-1A green card, which means you do not need a job offer to apply.

The EB-1A is the most difficult green card to get, and USCIS heavily scrutinizes these applications. I recommend working with an immigration attorney to maximize the chances of success. You must have extraordinary ability in the sciences, arts, education, business or athletics by demonstrating sustained national or international acclaim within your field.

You must have received a major internationally recognized award, such as a Nobel or Pulitzer Prize, or provide evidence that you meet at least three (the more, the better!) of these 10 criteria:

1. You have received nationally or internationally recognized prizes or awards for excellence in your field.
2. You have been selected to be a member of an association in your field that demands outstanding achievement of its members.
3. Articles about you have been published in professional or major trade publications or other major media.
4. You have been asked to judge the work of others.
5. Evidence of your original scientific, scholarly, artistic, athletic or business-related contributions of major significance to the field.
6. You have written articles in scholarly journals, professional or major trade publications, or major media.
7. You have held a leading or critical role in distinguished organizations.
8. You command a high salary compared to others in the field.
9. Your work has been displayed at artistic exhibitions or showcases.
10.  You have had commercial successes in the performing arts.

Your authorship and speaking may well contribute to a strong application but determining your field and the weight of the your cumulative evidence will be important pieces to charting your course forward!

Best always!

— 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.

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