February 3, 2023

Here’s another version From “Dear Sophie,” the advice column that answers immigration-related questions about working for tech companies.

“Your questions are vital to spreading the knowledge that allows people around the world to rise above borders and pursue their dreams,” Sophie Alcorn, an immigration attorney in Silicon Valley. “Whether you work in people operations, are a founder, or are looking for a job in Silicon Valley, I love it answer your questions in my next column.

TechCrunch+ members get access to weekly “Dear Sophie” columns; Use the promo code ALCORN to purchase a one- or two-year subscription at 50% off.

Dear Sophie,

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

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

The development of artificial intelligence

Dear Progress,

Thank you for contacting me with your questions. Before I delve into the answers, let me provide some context to help you better understand why you might be hired and thousands more face many years waiting to get a green card.

The United States places numerical ceilings per country on green cards issued each year and, unfortunately, penalizes individuals from countries with high levels of immigration, such as India and China. But since 2000, the American Competitiveness Act of the 21st Century – or AC21 Allow immigrants to continue to work, contribute and innovate after a maximum of six years in a Model H-1B, giving them and their families a measure of stability.

AC21 provides some stability

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

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 citizens of each country is a maximum of 7% – or 9,800 green cards – per year. I have always been a strong supporter of eliminating caps per country to create a market-based approach to immigration.

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

Can H-1B and Green Card Transfer?

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

Composite image of immigration attorney Sophie Alcorn in front of a background featuring the TechCrunch logo.

Image credits: Joanna Boniak / Sophie Alcorn (Opens in a new window)

It appears that her EB-2 green card (whether advanced degree or exceptional ability) cannot be transferred — or “transferred” — to your company. For green card transfer, candidate Form I-485 An amendment application, which is the final step in the green card process, must be pending with USCIS for At least 180 days.

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