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.” “Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.Dear Sophie: A very bright and promising foreign national who graduated from a U.S. university has been working for our firm and just received a STEM OPT extension. We would like to keep her on after her STEM OPT ends. We registered her in this year’s H-1B lottery, but unfortunately, she wasn’t selected. Given the challenges of getting an H-1B through the lottery and the #h1bvisaban, how can we bypass the H-1B and potentially sponsor her for a green card? — Eager in Emeryville Dear Eager, Happy to hear you’re willing to sponsor a promising graduate from an American university for a green card. Sounds like you’re interested in exploring the EB-2 or EB-3 green card with the PERM process. For additional resources, feel free to check out my recent podcast on PERM. Just because U.S. immigration policy often runs counter to retaining the best and the brightest college graduates in the U.S. doesn’t mean there isn’t hope. Some options exist for these talented folks and the companies that want to hire them, even though many employment-based green cards require candidates who are outstanding in their field. Recent graduates often haven’t yet built up their work experience and credentials, but there can be paths forward. Although it may present some immigration risks to the candidate that should be weighed carefully in collaboration with an experienced business immigration attorney, many employers have been doing as you suggested: sidestepping the H-1B visa and directly pursuing a green card. This is often due to the extremely competitive H-1B lottery and high denial rates for initial H-1B petitions and extensions. Also, a moratorium on all green cards, H-1B, H-2B, J and L visas for individuals currently outside the U.S. is in effect until the end of this year. This now makes it nearly impossible for most employers to sponsor individuals to come to the U.S. unless their work is in the national interest or essential to the U.S. food supply chain. So, many people are seeking solutions. First, the basics: Because your STEM OPT employee is already in the U.S., and the H-1B lottery now only costs $10 to register a candidate, I suggest that your company continue to enter her in the lottery as a backup option in case her F-1 STEM OPT status ends before you can secure her a green card. The green cards for which most recent graduates would be eligible require the sponsoring employer to go through the PERM labor certification process before filing a green card petition. Separately there are other green cards for extraordinary ability which I’ve also written about. PERM, which stands for Program Electronic Review Management, is the system used for applying for labor certification from the U.S. Department of Labor . Please speak with an attorney about the timing of this process and consider any risks to your employee’s personal immigration situation given her current F-1 nonimmigrant status. Labor certification must be submitted to U.S. Citizenship and Immigration Services (USCIS) with EB-2 and EB-3 green card petitions. Labor certification confirms that no U.S. workers are qualified and available to accept the job offered to the green card candidate and employing the green card candidate won’t adversely affect the wages and working conditions of American workers. Without knowing more about your STEM OPT employee’s background and qualifications, I would surmise that she might be able to qualify for one of these employment-based green cards:
- EB-2 Green Cards for Members of the Professions Holding Advanced Degrees
- EB-3 Green Cards for Skilled Workers, Professionals, and Other Workers
- Determine in detail the duties and minimum requirements of the position
- File a prevailing wage request
- Go through an extensive recruitment process
- Get a certification
- The employer recently laid-off employees
- The candidate appears unqualified for the position
- The job does not require a bachelor’s degree
- A company executive is related to the candidate
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. 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 here. You can contact Sophie directly at Alcorn Immigration Law. Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!