Sun. Aug 14th, 2022

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

“Your questions are vital to the spread of knowledge that empowers people around the world to rise above the limits and pursue their dreams,” said Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”

BestFitnessBands+ members get access to weekly “Dear Sophie” columns; Use promo code ALCORN to buy a one or two year subscription with 50% off.

Dear Sophie,

My startup needs to hire an AI expert and our top candidate has a complicated immigration situation. She is from India and has been on an H-1B for over six years. Her current employer applied for an EB-2 green card on her behalf through the PERM process about four years ago. She has been waiting for a green card number since she was approved and says it could be several years before she receives it.

She asks us to transfer her H-1B and green card to our company. Can we do it? Do we have additional options to keep her?

— Advancing AI

Dear progress,

Thank you for contacting me with your questions. Before I dive into the answers, let me give you some context to help you better understand why your potential hire and thousands of others have to wait years for a green card.

The United States places numerical and country-by-country limits on green cards that are issued every year and unfortunately penalizes individuals from countries with high immigration rates, such as India and China. But since 2000, the American Competitiveness in the 21st Century Act — or AC21 — has allowed immigrants to continue working, contributing and innovating beyond the typical H-1B maximum of six years, giving them and their families some stability.

AC21 offers some stability

AC21 allows H-1B holders to extend their visa beyond the maximum stay of six years if they are approved for a green card, but have to wait for a green card number to become available. The law also makes it easier for H-1B holders to change jobs without losing their place in the green card line if their green card adjustment application has been pending for at least 180 days.

The US immigration law limits the total number of employment-based green cards issued each year to 140,000. The number of employment-based green cards issued to the citizens of each country is capped at 7% — or 9,800 green cards — per year. I have long been a strong proponent of abolishing the country-by-country limit to create a market-based approach to immigration.

Now that you have some context, let’s address your questions.

Can an H-1B and Green Card be transferred?

Yes, your prospective tenant’s H-1B visa can be transferred to your company. However, there are several considerations.

A composite image of immigration attorney Sophie Alcorn in front of a background with a BestFitnessBands logo.

Image Credits: Joanna Buniak / Sophie Alcorn (Opens in a new window)

It sounds like her EB-2 (advanced degree or exceptional ability) green card can’t be transferred — or “ported” — to your company. To transfer a green card, the application for modification of the candidate’s Form I-485, the last step in the green card process, must have been pending with the United States Citizenship and Immigration Services (USCIS) in front of minimum 180 days.

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