Dear Sophie: How can I protect my H-1B and green card if I am laid off?

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.”

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Dear Sophie,

I am considering leaving my current, steady job for a job with a big name in tech. I’m excited, but nervous.

I’ve been hearing that you can lose your H-1B status if you are laid off. Is there any way I can protect my immigration status while making a bold job move?

— Leap of Faith

Dear Leap,

With tweets like this floating around, it’s a really important time to consider a “Plan B” if you’re an immigrant working in the U.S. on a H-1B! The good news is that you can bridge your status with a concurrent H-1B to protect yourself in case of a layoff.

Before you take the leap and move to the new company, it’s important to inventory your personal immigration system around such factors as:

• What is my current status in the U.S. and when does it expire?
• Which valid visas do I have in my passport, and when do they expire?
• What are my needs for international travel: Can I stay put in the U.S. for now while consulates are still backlogged?
• Where am I in the green card process: Do I need a PERM and has it been filed? Has the I-140 been filed? Do I have a priority date, and what is it? What dates am I looking at for an I-485?

A lot of these are legal questions that require important documents that you should collect as evidence of your status, rights and benefits. You might also need to consult an immigration attorney independent of your company to understand your rights and options.

If you do move to a new company, consider obtaining a “concurrent H-1B” at the second company. I often talk about concurrent H-1Bs in the context of obtaining an H-1B if you were not selected in the annual lottery, but this concept has other applications as well.

One option is to get an offer for a second, part-time job to work at another company. If you want to do this, consider consulting an employment attorney to make sure you’re not violating any promises you made by accepting your offer or signing a confidentiality agreement with your first H-1B employer. Some companies have rules and committees that decide if current employees are allowed to found startups on the side.

If you take this route, the second company will need to know about your other full-time job, because their immigration lawyer will have to check the appropriate boxes in the concurrent H-1B petition. You also want to make sure that you’re above board with the terms and conditions of accepting the second job.

The second, concurrent H-1B can be structured for a wide range of hours per week. It can be hourly or salaried.

It’s useful to have a second, concurrent H-1B in place, because if you are laid off by the first job with the primary H-1B, instead of only being relegated to the 60-day grace period, your second, concurrent part-time H-1B will still be in effect. You’ll be able to maintain valid status in the U.S. while you look for another job or work out the details with the second company to increase your hours to full time.

The second, concurrent H-1B can come up in your immigration paperwork down the road if it’s denied, and you would have to list that on subsequent I-129 petitions. Also, the I-485 Adjustment of Status application requires your full employment history. Usually, the law firm for the employer sponsoring the green card fills up this document for you when you get to that stage.

Obtaining a second, concurrent, H-1B is a great way to avoid having to leave the U.S. if you are laid off. More people should consider it.

All my best,

— Sophie

Dear Sophie,

My early stage startup hasn’t been able to hire as quickly as I would like, due to fierce competition. Now that we’re seeing some movement in the job market, we think we can probably finally compete for some top engineering talent in our budget.

How can I hire people who were recently laid off on H-1B?

— Strategic Sponsor

Hi Strategic,

It’s a great time to hire. You can get somebody’s H-1B transferred to your company in about four to six weeks, and the candidate can usually begin work as soon as you file the change of employer petition with USCIS. The government just has to receive the petition, and don’t have to adjudicate it. If the candidate was recently laid off, the petition must be received by USCIS before the end of their 60-day grace period. The result is usually that your candidate can work for you with H-1B status for three years.

Here’s more information on your options:

File for premium processing

According to the USCIS Case Processing Times page, the agency takes anywhere from 45 days to five months to deliver a decision on an H-1B case. The time frame is dependent on which service center is handling the case.

You can use the processing times page to determine if your case is pending beyond the normal processing time — if it is, you can contact USCIS. You can also check the status of the case online here to ensure there are no issues with your case. In general, I highly recommend using premium processing for change of employer petitions.

To file for premium processing, you will need to fill out Form I-907 (Request for Premium Processing Services) and pay the $2,500 fee for H-1B applications. With premium processing, USCIS will have 15 days to either decide on the application or issue a Request for Evidence (RFE). If you receive an RFE, I recommend consulting your immigration attorney.

Deciding on green card sponsorship

Offering to sponsor international talent for a green card — and paying for the process — goes a long way toward demonstrating that you value your employee and want them to continue working for you. There is no minimum amount of time that you have to wait before sponsoring an H-1B employee for a green card. But if you’re going to sponsor your employee for a green card, I recommend doing so before at least the fifth year of their H-1B.

More and more employers are beginning the green card process earlier due to the wait times, particularly for people who were born in India or China. If your H-1B employee was born in either of those countries, consider giving them responsibilities and opportunities that will let them build up their qualifications for an EB-1A extraordinary ability green card. Currently, the EB-1A is the only employment-based green card that does not have a wait time of several years for those born in India and China.

All my best,
— Sophie

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