How can I protect my H-1B and green card if I am laid off?(alcorn.law)
alcorn.law
How can I protect my H-1B and green card if I am laid off?
https://www.alcorn.law/immigration/dear-sophie-how-can-i-protect-my-h-1b-and-green-card-if-i-am-laid-off-how-can-my-startup-hire-laid-off-people-on-h-1b/
77 comments
H1-B is dual intent. After six years in the US as an H1B worker, you can become eligible to apply for a US Green Card, which will allow you to remain in the USA indefinitely. However due to the backlogs in priority dates for some categories, you could potentially be in H-1B status for 10-20 years while waiting for your priority date to become current. But you can keep renewing using AC21 provisions in the meantime.
This is not true. An H1B employee can not apply to become a permanent resident ("green card") based on their H1B employment itself.
As far as I know, the only way to self petition for an extraordinary ability (EB1) based immigration, but that probably applies only to a small percentage of H1B workers. The rest are bound to their employer applying to grant the employees immigration benefits, which the employer may or may not do.
As far as I know, the only way to self petition for an extraordinary ability (EB1) based immigration, but that probably applies only to a small percentage of H1B workers. The rest are bound to their employer applying to grant the employees immigration benefits, which the employer may or may not do.
H-1B holders can seek green cards through a variety of ways: green card lottery (for certain countries), family sponsorship (such as marriage green cards), and employment sponsorship (the EB-1, EB-2, EB-3, EB-4, and EB-5 categories.)
Within the EB's, most companies will sponsor H-1B holders for green cards in the EB-2 or EB-3 categories in a 3-step process: PERM, I-140, I-485.
If an H-1B holder wants to get a green card based on work/accomplishments as a self-petitioner, the two main pathways are:
Eb-1A for extraordinary ability, helpful for people subject to long India/China backlogs
Eb-2 NIW, easier than O-1A, takes 2-3 years if you're not subject to India/China backlogs.
Within the EB's, most companies will sponsor H-1B holders for green cards in the EB-2 or EB-3 categories in a 3-step process: PERM, I-140, I-485.
If an H-1B holder wants to get a green card based on work/accomplishments as a self-petitioner, the two main pathways are:
Eb-1A for extraordinary ability, helpful for people subject to long India/China backlogs
Eb-2 NIW, easier than O-1A, takes 2-3 years if you're not subject to India/China backlogs.
I forgot about EB2 NIW (which again, I understand isn't open to all, due to the NIW requirement).
But unlike what the top level commenter wrote, the option for an H1B holder to become a permanent resident by their own action, rather then by their employer benevolence, is limited to very few (the green card lottery and the above mentioned narrow self-petition categories), and isn't a thing you can just do after a certain length of stay in the US.
But unlike what the top level commenter wrote, the option for an H1B holder to become a permanent resident by their own action, rather then by their employer benevolence, is limited to very few (the green card lottery and the above mentioned narrow self-petition categories), and isn't a thing you can just do after a certain length of stay in the US.
That's true! But I've helped a LOT of people go from unqualified to qualified for Eb-1A or EB-2 NIW. Here is my class that teaches people how: https://alcorn-immigration-law.teachable.com/p/extraordinary...
This is not immigration policy, but a private service. Which, even if had a 100% success rate, would still count for very few out of the 140,000 yearly green cards.
Yes, we need systemic legal change. But at least in the short term there are at least some options for those who need them.
What? They absolutely can, and it can be employee supported - I know this because I actually started this. While in the insanely long backlog you can get your h1b extended beyond the six year limit as well.
I had got married by and had a green card through that before the backlog and what not would have got through on the h1b path, but if I hadn’t met my person I would have still ended up a permanent resident.
I had got married by and had a green card through that before the backlog and what not would have got through on the h1b path, but if I hadn’t met my person I would have still ended up a permanent resident.
They can if they fit the criteria for EB1A or EB2 NIW. I don't think most of H1B recipient fit the criteria for those visas.
Yes this is correct.
One doesn't need to wait 6 years with H1B to apply for green card. S/he needs to get his/her employer to agree on sponsoring the green card and the process can start whenever. My employer agreed to apply for green card in the second year of my H1B. I fortunately am not from one of those countries (China and India) with long wait for green card, so I got mine in a little less than 4 years (in fact, my case took a bit longer than usual, but COVID-related delay was a factor and the lawfirm, Fragomen, messing up a step in my application process was another factor in such a delay).
Yes, this is correct. Some employers are even willing to start the green card process before the H-1B is even selected in the lottery. But whether that's a good idea depends on the specifics of each employee's travel plans and current immigration status.
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Yes, the H-1B is dual intent. Actually people can start the green card process sooner than 6 years. Yes, the H-1B is usually valid up to 6 years but there can be AC21 extensions if you reach certain milestones in the green card process. The wait times for people who have to go in the category of people born in India or China could potentially be many decades.
My (potentially wrong) understanding is that backlogs are often determined by country in order to prevent any particular foreign ethnic group (like China or India) from becoming residents in such quantities that assimilation to American culture is unlikely.
Pragmatically you can already see the effects of anti foreign ethnicity backlash in national politics, so it does seem like something that needs some level of management.
Pragmatically you can already see the effects of anti foreign ethnicity backlash in national politics, so it does seem like something that needs some level of management.
The backlogs do exist, they're based on the Immigration and Nationality Act of 1965, and they are for green cards specifically. In the employment-based immigrant visa categories, they specifically apply to people from India and China.
I'd go even further. If a country benefits from someone's work and taxes, it should give them a say in how these taxes are spent (i.e. let them vote) after a quite short term, for example one year.
I don't think so. The right to vote and control how money is spent is the right of a citizen. However I think the current immigration system is awful and should be completely redone and improved and the waitlists drastically reduced with citizenship being a lot more streamlined for active, productive members participating in our economy.
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Do you think assimilation matters? Do you think to a meaningful degree cultural norms dictate societal level outcomes?
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Yes, I totally agree. We need systemic change. I helped write the startup visa for Congress and although the house passed it, the Senate wouldn't. They're gridlocked and we need other creative legal solutions.
H1-Bs do have a path to permanent residence and so citizenship.
The problem is that the various rules around being on an H1-B make it super easy to exploit workers - which has a side effect of reducing permanent resident and citizen wages.
The problem is that the various rules around being on an H1-B make it super easy to exploit workers - which has a side effect of reducing permanent resident and citizen wages.
Not a universal path. It depends on their employer benevolence, or them matching a specific criteria of excellence, which I'm assuming many won't.
Compare with other countries, where the eligibility for residency is automatic for all foreign workers for have worked in that country for a given amount of time.
Compare with other countries, where the eligibility for residency is automatic for all foreign workers for have worked in that country for a given amount of time.
I believe H-1B is a dual-intent visa, allowing application for a Green Card after a specified number of years. Green Card holders then become eligible for citizenship after another specified number of years. So if my understanding is correct, the US government agrees with you.
This is not true. An H1B employee can not apply to become a permanent resident ("green card") based on their H1B employment itself.
As far as I know, the only way to self petition for an extraordinary ability (EB1) based immigration, but that probably applies only to a small percentage of H1B workers. The rest are bound to their employer applying to grant the employees immigration benefits, which the employer may or may not do.
As far as I know, the only way to self petition for an extraordinary ability (EB1) based immigration, but that probably applies only to a small percentage of H1B workers. The rest are bound to their employer applying to grant the employees immigration benefits, which the employer may or may not do.
Also the EB-2 NIW, see my other comment in this thread!
> Green Card holders then become eligible for citizenship after another specified number of years
In theory, yes. But there's a massive backlog, depending on your country of origin. I know somebody who graduated in the US and after 10+ years they gave up trying to obtain a green card in the US and instead applied for permanent residence in Canada -- within a year they had moved with their family. This is far from unique.
In theory, yes. But there's a massive backlog, depending on your country of origin. I know somebody who graduated in the US and after 10+ years they gave up trying to obtain a green card in the US and instead applied for permanent residence in Canada -- within a year they had moved with their family. This is far from unique.
The system is super broken. If you're from India or China and on H-1B and just starting out, do whatever your employer is willing to sponsor you for to get a green card, but your fastest path is probably to figure out how to qualify through only legal employment activities to get an O-1A and then an EB-1A.
Yes but your employer needs to sponsor you for a green card, and they don't really have any incentive to do so (since once you have the green card you don't have to work for them anymore).
I think this sounds theoretically reasonable, but in reality it's not like this:
- The cost of sponsoring someone for a green card ($50k?) is low compared to engineering salaries.
- Many companies like Google have great retention and the probability that an employee leaves after getting green card is low.
- Companies that are worried about retention often have employees sign a reimbursement agreement when starting the GC process. Something like, if you leave within 2 years of getting the GC you pay a prorated portion of the legal fees.
- In a tight labor market, GC sponsorship is another benefit like compensation, and companies offer it to hire good people. Over the last few years companies like Amazon have changed their GC policy to sponsor folks from day 1 of employment in order to hire people for whom a GC is that important.
- The cost of sponsoring someone for a green card ($50k?) is low compared to engineering salaries.
- Many companies like Google have great retention and the probability that an employee leaves after getting green card is low.
- Companies that are worried about retention often have employees sign a reimbursement agreement when starting the GC process. Something like, if you leave within 2 years of getting the GC you pay a prorated portion of the legal fees.
- In a tight labor market, GC sponsorship is another benefit like compensation, and companies offer it to hire good people. Over the last few years companies like Amazon have changed their GC policy to sponsor folks from day 1 of employment in order to hire people for whom a GC is that important.
Yes, you do need to work for them because if you become a PR through employment then jump then it was always viewed as fraud. The generally recommended strategy was to stay with the employer for one year after the PR status is granted.
IMO, the solution offered in the article is not realistic. If you're getting a job offer from Coinbase that's 30% higher than Google's (tweet referenced by the article), neither company will agree to you working both jobs concurrently. Even if they astonishingly did, they would likely require at least 30 hours each, which is extremely bad for your mental health.
Here are a couple more realistic options to consider:
1) If you're not born in India or China, prioritize landing a job at a stable employee-friendly company that is willing to start your green card petition asap. Stay there till you get your green card. If things go smoothly, it should only take ~2 years
2) If you're born in India or China, live extremely frugally throughout your 20s and save up as much money as you possibly can. Worst case scenario: use your savings and supplement with personal loans to apply for a EB5 visa (costs about $800k)
3) Apply for permanent residency in places like Canada/Australia/NZ. If you're a FANG caliber developer, you'll be welcomed with open arms in most countries besides USA. You'll most likely take a big hit to your compensation, and being forced to move countries is never fun, but at least your life would be somewhat similar to living in USA
Here are a couple more realistic options to consider:
1) If you're not born in India or China, prioritize landing a job at a stable employee-friendly company that is willing to start your green card petition asap. Stay there till you get your green card. If things go smoothly, it should only take ~2 years
2) If you're born in India or China, live extremely frugally throughout your 20s and save up as much money as you possibly can. Worst case scenario: use your savings and supplement with personal loans to apply for a EB5 visa (costs about $800k)
3) Apply for permanent residency in places like Canada/Australia/NZ. If you're a FANG caliber developer, you'll be welcomed with open arms in most countries besides USA. You'll most likely take a big hit to your compensation, and being forced to move countries is never fun, but at least your life would be somewhat similar to living in USA
I know a lot of immigrants who can get an offer for concurrent employment for 5-10 hours a week at smaller companies that don't make as many headlines as a company like Coinbase.
It's a lot cheaper to get qualified for an O-1A or EB-1A than an EB-5 if you're just comparing financial investment.
It's a lot cheaper to get qualified for an O-1A or EB-1A than an EB-5 if you're just comparing financial investment.
The short, unpopular, possibly illegal answer:
Get fucking married (to a US permanent resident or citizen)!
This is more common than you think. It was more common than I thought! USCIS is dumpster fire purgatory and any competent, results driven lawyer will tell you so.
Get fucking married (to a US permanent resident or citizen)!
This is more common than you think. It was more common than I thought! USCIS is dumpster fire purgatory and any competent, results driven lawyer will tell you so.
There is nothing illegal or unpopular about this answer. It doesn't happen as commonly due to large cultural differences, and there is more to life than just a visa (as important as that might be).
It's illegal to fraudulently marry for the purpose of gaining permanent residency. Obviously there's some gray area there and I'm not giving legal advice, but at least sometimes using marriage to get residency or citizenship is a crime.
The word "fraudulently" is doing a lot of heavy lifting here. As I understand it, the bar to get into "fraud" territory is actually pretty far down the spectrum.
Dating people and limiting people you go on dates with the "US Citizens" because you want to be able to actually have a life that doesn't involve one/both of you being deported is 100% not fraud, or illegal. If you main reason for having a relationship with someone is to get a green card, but you still have a bonafide relationship with that person, it is not illegal. It may make you a shitty person, but it's not illegal.
A conspiracy to lie to USCIS about your relationship, which typically involves purposely arranging and/or fabricating evidence of a relationship *is* fraud, and is definitely illegal.
Dating people and limiting people you go on dates with the "US Citizens" because you want to be able to actually have a life that doesn't involve one/both of you being deported is 100% not fraud, or illegal. If you main reason for having a relationship with someone is to get a green card, but you still have a bonafide relationship with that person, it is not illegal. It may make you a shitty person, but it's not illegal.
A conspiracy to lie to USCIS about your relationship, which typically involves purposely arranging and/or fabricating evidence of a relationship *is* fraud, and is definitely illegal.
They made a whole movie about this.
My wife and I had the amusing task of learning all kinds of obscure facts about each other ahead of my interview, since we had seen the movie and knew they would ask about which end of the toothpaste tube the other squeezes...
But in the end the person conducting the interview seemed to have seen the movie too and determined that we were bickering sufficiently about our answers to prove the marriage was legit ;)
My wife and I had the amusing task of learning all kinds of obscure facts about each other ahead of my interview, since we had seen the movie and knew they would ask about which end of the toothpaste tube the other squeezes...
But in the end the person conducting the interview seemed to have seen the movie too and determined that we were bickering sufficiently about our answers to prove the marriage was legit ;)
I'm not going to disagree that this definitely happens a lot, but it's definitely not an option for many people who have been stuck in a backlog for 10 years and are already married/have children with a spouse that immigrated with them.
If you have a Green Card there is nothing to protect(You're a permanent resident of the U.S.). If you are laid off then just find another job. There are no restrictions on a Green card except that you should spend most of your time(at least 6 months) in the U.S. a year.
If you read the article, you can tell they are talking about people who have applied, but not yet received their green card. Citizens of some countries have a decade or longer wait to get processed.
Don't they receive EAD cards, which are almost green card and work until your green card case is decided?
Yes, your interpretation of my article is correct!
That is generally true, except perhaps in the first couple years of having your green card if you got it through employment. It could come up in a citizenship application if you didn't work at the sponsoring company long enough.
What is the exact reason for such a big backlog ?
My theory is that the backlog is mostly a double edged sword. If the backlog turned to zero today, the Universities would flood with applications from around the world and the number of I140s would increase exponentially in the next 10 years.
The backlog hence keeps expectations in check. I know plenty of friends on I140s who may not get a green card for the next decade. And yet they still plan on buying a home and starting a family in the Bay Area because now they are a prisoner of the lifestyle. Back in India they could live in the top 1% with the money they saved so far but they don’t want to go back ever.
Thus the US is basically keeping its universities funded by enough international students and as long as there are open opportunities in STEM they keep issuing H1Bs and I140s.
The question is whether the government cares at all to deal with backlogs or if they like the current situation. My guess would be the latter.
My theory is that the backlog is mostly a double edged sword. If the backlog turned to zero today, the Universities would flood with applications from around the world and the number of I140s would increase exponentially in the next 10 years.
The backlog hence keeps expectations in check. I know plenty of friends on I140s who may not get a green card for the next decade. And yet they still plan on buying a home and starting a family in the Bay Area because now they are a prisoner of the lifestyle. Back in India they could live in the top 1% with the money they saved so far but they don’t want to go back ever.
Thus the US is basically keeping its universities funded by enough international students and as long as there are open opportunities in STEM they keep issuing H1Bs and I140s.
The question is whether the government cares at all to deal with backlogs or if they like the current situation. My guess would be the latter.
> What is the exact reason for such a big backlog ?
The two political parties can't agree on reforms for legal immigration. The current rules were written for a generation when the quantity and nature of immigration was very different.
The two political parties can't agree on reforms for legal immigration. The current rules were written for a generation when the quantity and nature of immigration was very different.
Well when one basically wants 0 immigration (except maybe multimillionaires and friends) and the other wants nearly unlimited asylum seeker openings I don't see the trainwreck ending anytime soon. On the whole though the US has a middle of the road amount of immigrants becoming citizens.
My theory is that US favors Christian countries and population for permanent residency. The numbers support it.. but of course nothing else does, so there..
> What is the exact reason for such a big backlog ?
I would love to see a GANTT chart for all kinds government bureaucracy, not just visa approval. Everything from building permits to environmental impact studies, to issuances of drivers licenses... we just seem to accept that it vaguely takes a long time, but why? What physical actions all add up to 10 years? What actual activity does person A do, how long does it take, then what actual activity does person B then do if it's blocked on person A's work, how long between person A completes their task and person B picks up the work, and so on. Maybe I am just ignorant of the amount of time that these things actually take to approve, but I suspect the vast, vast amount of time is spent with people actually doing nothing: they're waiting for the previous step, sitting in meetings, picking their nose, doing other things besides the actual processing.
How does a building permit take 6 months? It should take 30 minutes to read the application, apply some criteria and stamp the paper. Does it really just sit in a queue for 5 months, 29 days, 23 hours, 30 minutes out of those 6 months?
I would love to see a GANTT chart for all kinds government bureaucracy, not just visa approval. Everything from building permits to environmental impact studies, to issuances of drivers licenses... we just seem to accept that it vaguely takes a long time, but why? What physical actions all add up to 10 years? What actual activity does person A do, how long does it take, then what actual activity does person B then do if it's blocked on person A's work, how long between person A completes their task and person B picks up the work, and so on. Maybe I am just ignorant of the amount of time that these things actually take to approve, but I suspect the vast, vast amount of time is spent with people actually doing nothing: they're waiting for the previous step, sitting in meetings, picking their nose, doing other things besides the actual processing.
How does a building permit take 6 months? It should take 30 minutes to read the application, apply some criteria and stamp the paper. Does it really just sit in a queue for 5 months, 29 days, 23 hours, 30 minutes out of those 6 months?
> What is the exact reason for such a big backlog ?
The affected people can't vote.
The affected people can't vote.
The exact reason is that US only allows for limited number of green cards(GC) in a year and each country has a limited quota (no more than 7% can go to any country, IIRC). India and China have a huge backlog of people that with the current number of GCs and the backlog, you are looking at multi-decade wait. There are some nuances here as there are three tiers in the employment based immigrant visa - EB1, 2 and 3. EB1 typically happens pretty fast, but you have to meet the criteria. 2 and 3 are backlogged to hell.
On a more personal note, I feel this is part of the west trying maintain cultural and racial superiority.. but that is just my opinion.
On a more personal note, I feel this is part of the west trying maintain cultural and racial superiority.. but that is just my opinion.
If you would be so kind as to not associate the whole of the West in your (fair) appraisal of the US of A's mistreatment of non-whites, this would be very much appreciated.
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There is a quota for employment-based green cards (typically 140k/year). The number of applicants that apply each year is larger than the quota. So every year the total number of people who have applied but cannot be approved due to the quota gets larger.
Because of the per-country limit of 7%, these queuing dynamics generally only affect people from countries with large number of applications (India, China). But sometimes there will be a backlog for all countries. The current forecast is that there will be a backlog in 2023 in the EB2 category for all countries.
Because of the per-country limit of 7%, these queuing dynamics generally only affect people from countries with large number of applications (India, China). But sometimes there will be a backlog for all countries. The current forecast is that there will be a backlog in 2023 in the EB2 category for all countries.
So the recommended solution to losing your full time job and H-1B, is to get a part-time H-1B and a second job?!
Also a Green Card is not something you can lose/have to protect. I think the title should be updated to reflect "Green Card Application", which you absolutely can lose/have cancelled.
Also a Green Card is not something you can lose/have to protect. I think the title should be updated to reflect "Green Card Application", which you absolutely can lose/have cancelled.
You can loose your green card if there is a suspicion you do not plan to continue to reside in the US (in theory, every time you cross the border, the customs agent can decide to revoke your green card on the spot. Luckily, this usually doesn't happen).
Yes, that is the solution I recommended in the article, because a lot of people are worried that the 60 day grace period won't be enough if they are laid off from their current H-1B employer.
Website can't handle traffic atm.
Here is archive. https://archive.is/AsFQs
Here is archive. https://archive.is/AsFQs
Happy this article I wrote is of value to y'all. Lmk if you have questions and I'll try to respond where I can.
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If you have permanent residence via a (non-provisional) green card then your employment is not relevant.
Usually, yes!
Every single person in the United States on an H-1B knows that it is not a residency visa.
Time for me to grab some popcorn and read some hot incoming comments
Hahaha
Who has a H-1B and a green card? The title is not very good. Rest of the article seems on point though.
I agree that the title is not very clear. However, giving the author the benefit of the doubt, I guess what they're trying to say is "protect my H-1B and [my eventual eligibility for a] green card [that stems from my having an H-1B visa]".
In other words, lose the H-1B, lose the chance to get a green card.
In other words, lose the H-1B, lose the chance to get a green card.
I think the phrasing is just to get the key phrase "green card" in there.
The actual question doesn't mention it, but in the answer she gets into the green card process.
The actual question doesn't mention it, but in the answer she gets into the green card process.
I tried to cover it all but sometimes TechCrunch edits the headline. Thanks for reading!
Citizenship should be performance based as opposed to based upon place of birth or being rich or lucky enough to obtain a piece of paper from some governmental body. It honestly shocks and disturbs me that this isn't a commonsense principle in 2022.
> Citizenship should be performance based as opposed to based upon place of birth
Wait, what? I thought you were going to suggest that people should be free to live/work wherever, which I agree with in principle, but also think it's not a change that can be made overnight. You seem to be suggesting that everybody has to earn the right to live in a particular country, even if they were born there. If that was universal, where would the people who fail the test go?
Wait, what? I thought you were going to suggest that people should be free to live/work wherever, which I agree with in principle, but also think it's not a change that can be made overnight. You seem to be suggesting that everybody has to earn the right to live in a particular country, even if they were born there. If that was universal, where would the people who fail the test go?
Performance based in my opinion means if you live in a region or territory for a certain amount of time and otherwise act in a manner that would indicate you intend to make this place your home, you would be eligible to be a citizen of that territory. I'm not a fan of the idea that buying a bunch of property or investing a bunch of money in a local business without living there would give the right to have an equal voice in the governing of that territory as somebody who makes their home there.
Sorry, the world doesn't work this way. Countries are sovereign and executive authorities have direct control over who they allow in and out of said countries. Putting "right" in scare quotes doesn't make it magically not a right of government to do these things.
The world doesn't currently work in the this way sadly.
It's perverse there is any visa that lets someone stay in the country for decades without offering them a path to permanent residency and citizenship.