Dear Sophie: Will the US suspend H-1Bs and other work visas? How should I prepare?

Dear Sophie: Can we sponsor an H-1B university researcher for an EB-1B green card?

Sophie Alcorn

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Sophie Alcorn is the founding father of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects individuals with the companies and alternatives that broaden their lives.

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Dear Sophie:

Our firm is contemplating sponsoring a job candidate for an EB-1B inexperienced card. She presently has an H-1B analysis place at an American college. How lengthy does the EB-1B course of take? What can we do to maximise our probabilities for approval? Could we sponsor her for multiple inexperienced card to enhance her probabilities?

— Passionate in Pleasanton

Dear Passionate,

Thanks on your questions. The state of affairs you describe is sophisticated, in order at all times, please seek the advice of with an skilled immigration lawyer to discover your organization’s choices in additional element. In a current podcast, I discuss how tech firms can use the EB-1B inexperienced card to draw and retain researchers. In a nutshell, sure, you may rent her, and sponsor her for multiple inexperienced card concurrently. Here’s how.

The time it takes for a candidate to obtain an EB-1B inexperienced card depends upon their nation of delivery. If your candidate was born in China or India, she faces ready a number of years for an EB-1B inexperienced card until she already has a precedence date. For candidates born in every other nation, the EB-1B inexperienced card course of may nonetheless take near a 12 months or extra even when the I-140 inexperienced card petition and I-485 adjustment of standing kind are filed collectively or if the I-140 petition is filed with premium processing. Regardless, to ensure that the candidate to stay within the U.S. to reside and to begin working for you within the quick time period whereas your organization pursues an EB-1B inexperienced card, your organization would wish to sponsor her for an H-1B or O-1A within the interim.

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Before I’m going into extra element in regards to the necessities for the EB-1B inexperienced card and what it takes to submit a robust EB-1B petition, listed below are some issues to remember:

  • Since the candidate works for a college, she probably has a cap-exempt H-1B, which implies that the H-1B was not topic to the annual numerical cap and lottery. Unfortunately, a cap-exempt H-1B can solely be transferred to a different cap-exempt employer, reminiscent of one other college, a nonprofit, or a authorities analysis group. Your firm might want to sponsor the candidate for a brand new, cap-subject H-1B by registering her for the lottery subsequent March. If the candidate is chosen within the lottery and the H-1B petition is accepted, the earliest she will begin working for you’ll be Oct. 1, 2021. Alternatively, we will work with you to discover choices for various cap-exempt H-1Bs that you would be able to get any time of 12 months.
  • If the job candidate was born in China or India and her present employer is sponsoring her for a inexperienced card, she could possibly retain her precedence date, or place in line for a inexperienced card, when your organization sponsors her for one.
  • With restricted exceptions, the U.S. has stopped issuing inexperienced playing cards and H-1B visas to people exterior of the U.S. not less than by the tip of the 12 months underneath President Trump’s proclamations, so the candidate ought to attempt to stay in authorized standing within the U.S. with out departing.
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To sponsor a person for an EB-1B inexperienced card as a personal firm (and never a college), your organization should already make use of not less than three full-time researchers and present accomplishments within the area of analysis. Your firm should present that the EB-1B candidate has been acknowledged for distinctive achievement in her or his area of analysis.

The candidate should have not less than three years of analysis expertise and should meet two of the next standards:

  • Has obtained main prizes or awards for excellent achievement.
  • Belongs to associations that require excellent achievement.
  • Work or analysis has been written about in skilled publications or different main media.
  • Has judged the work of others both alone or whereas serving on a panel.
  • Contributed unique scientific or scholarly analysis of their area.
  • Authored scholarly books or revealed articles.

It’s just like an EB-1A however somewhat bit simpler.

After working with counsel to find out the 2 qualifying standards to deal with, ensure your organization and the candidate assemble sturdy, compelling proof and documentation. Supplement that documentation with letters of endorsement from consultants within the candidate’s space of experience. Keep in thoughts that U.S. Citizenship and Immigration Services (USCIS) evaluates the EB-1B petition primarily based on whether or not enough proof is submitted to assist two of the standards and the standard of the proof that signifies the candidate is excellent of their area. As normal, any paperwork in a overseas language have to be translated and licensed.

Your firm might want to embody the job provide letter indicating the intention to make use of the candidate in a everlasting analysis place of their area along with proof that your organization employs not less than three researchers and has achieved accomplishments within the analysis area. These are normally fairly hefty packages of proof and paperwork that attorneys assemble.

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As with any utility or petition, retain clear steerage as a result of small errors on the I-140 inexperienced card petition can delay and even derail a case. For instance, be sure to use the latest version of the mandatory kinds. Make certain the right pages are signed in blue or black ink by the suitable events, holding signatures contained in the field so it may be scanned. Make certain your organization submitted the right submitting charge quantities and premium processing charge, if relevant. Submit the applying packet to the right handle and ensure it may be tracked.

To reply your final query, sure, your organization can sponsor a candidate for multiple inexperienced card to enhance the probabilities of receiving one.

Both the EB-1A inexperienced card for people with extraordinary means and EB-2 NIW (National Interest Waiver) for people with distinctive means don’t require employers to undergo the prolonged PERM labor certification course of. However, they’ve rigorous necessities. Check out this overview on these two inexperienced playing cards and how one can put together.

Three different inexperienced card choices have much less stringent necessities than the EB-1A and EB-2 NIW, however 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 extra particulars on the PERM labor certification course of, take a look at my podcast on the subject.

Let me know the way issues prove.

Good luck!


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Sophie’s podcast, Immigration Law for Tech Startups, is offered on all main podcast platforms. If you’d prefer to be a visitor, she’s accepting functions!


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