Dear Sophie: Should we sponsor international hires for H-1B transfers and green cards? 

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,

My startup is desperately recruiting, and we see a lot of engineering candidates on H-1Bs. They’re looking for H-1B transfers and green cards. What should we do?

— Baffled in the Bay Area

Dear Baffled,

Yes, you should absolutely sponsor international talent for green cards! Listen to my podcast in which I discuss how to hire international professionals who are already in the United States by transferring their H-1B visa and using green cards as a benefit to attract and retain them.

The severe shortage of tech talent currently in the U.S. is prompting professionals to negotiate better compensation packages, and companies are increasingly using green card sponsorship as a benefit to attract and retain international talent.

Green card sponsorship as a benefit

Companies need to offer green card sponsorship to remain competitive. In fact, Envoy’s 2021 Immigration Trends Report found that 74% of employers said they have sponsored an individual for permanent residence (a green card), which is the highest percentage in the six years Envoy has asked this question in its annual survey. Rather than waiting until the last possible moment to sponsor an H-1B visa holder for a green card, 58% of employers say they are starting the process with the employee’s first year at the company on an H-1B visa. Most employers — 96% — said that sourcing international talent is important to their company’s talent acquisition strategy.

Sponsoring international talent for a green card is a way for companies to show they invest in and prioritize their employees and are willing to make a long-term commitment to a prospective employee. Employers can further distinguish themselves by offering to cover expenses for green card applications for a spouse and children, as well as a work permit application for a spouse.

Employers should also consider paying for an employee’s marriage-based green card as a third-party payor, particularly since marriage-based green cards take about one-third of the time and one-third of the investment compared to employment-based green cards. What’s more, most marriage-based green cards are not subject to annual quotas.

H-1B transfers are most common right now

Because most U.S. embassies and consulates abroad remain closed for routine visa processing due to COVID-19, most employers are hiring international talent who are already in the United States on an H-1B sponsored by another employer. In these situations, an employer must file for an H-1B transfer for the prospective employee. Take a look at a previous Dear Sophie column for more details on the H-1B transfer process.

The questions that employers ask me most often about the H-1B transfer process include:

• What questions should we ask job candidates?
• How risky is the process of transferring an H-1B to a new employer?
• How quickly can an H-1B transferee start working for us?

Let’s dive in.

What questions should we ask H-1B transferees?

When you’re interviewing job candidates, it’s usually permissible to ask whether a prospective employee requires immigration sponsorship. If a candidate says yes, you can find out details such as:

• Which country were you born in?
• What is your current visa status?
• How long in total have you been in that status and when does it expire?
• Has any employer already started the green card process for you?
• If so, which stage did you get to?
• Have you had any immigration issues?
• Do any of your family members need to be included?

How risky is an H-1B transfer? How quickly can a transferee start?

In general, an H-1B transfer is pretty predictable if your company can pay the candidate’s salary and you’re offering a professional role. It’s definitely less risky than a new H-1B since an H-1B transfer does not require the candidate to go through the H-1B lottery process. Still, an H-1B transfer will require you to file a Labor Condition Agreement with the U.S. Department of Labor and an H-1B application with U.S. Citizenship and Immigration Services (USCIS). Take a look at a previous Dear Sophie column on how to craft a strong H-1B petition.

With the H-1B transfer process, the start date is usually flexible since the prospective employee is already in the U.S. The fastest way for an H-1B transferee to begin working for you is also the more risky approach: The individual can begin working for you as soon as USCIS receives your H-1B transfer application. However, if USCIS denies the application, the prospective employee would probably have to leave the U.S. and reenter with a valid visa, which is more difficult now due to COVID. The less risky approach would be to select a start date that would allow the prospective employee to give notice to their current employer once the H-1B transfer has been approved.

What should I know about the green card process?

Normally, the H-1B is valid for a total of six years — up to three years initially with one three-year extension. If the H-1B transferee’s current employer has filed an approved I-140, you can extend the individual’s H-1B beyond six years if they are waiting for a green card number to become available to file an adjustment of status application (Form I-485).

Some green cards require employers to file what’s known as PERM Labor Certification with the Labor Department. Once PERM is approved, then a green card application can be submitted to USCIS. If the H-1B transferee’s PERM with their current employer has not yet been certified, you would need to begin the green card process with the H-1B transferee from the beginning.

If the individual’s I-140 has been approved but their priority date for filing an adjustment of status application (Form I-485) has not become current, then you will need to begin the green card process again with PERM, but the individual will retain their priority date — or original place in line for a green card. If the individual’s I-140 has been approved and an adjustment of status application (Form I-485) has been filed and pending for at least 180 days, that person can change jobs and still adjust status from H-1B to a green card without filing a new I-140 as long as the new job is the same or similar to the current job.

Listen to my podcast episode on the green card process for more details.

Wishing you all the best in your recruiting efforts!

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. 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!