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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Today we bring you answers to three questions about green cards in the EB-1A category for extraordinary ability and multinational managers, EB-2 NIW and with PERM, as well as EB-3 for professionals.
I was so close! My priority date for my EB-2 application to register permanent residence was just nine days from the date listed in the September 2022 Visa Bulletin, but now the date in the October 2022 Visa Bulletin has gone back more than two years!
I’m a software engineer and wanted to get my green card before I change jobs, but now I’m reconsidering my path. The only thing holding me back is I’ve heard that employees will be fined if they leave their employer before they actually get the green card.
What’s your advice?
— Bumped by the Bulletin
I understand how frustrating it is to wait for so long and get so close only to be met with another delay. But don’t fret! The retrogression — the earlier cut-off date — in the Visa Bulletin for October 2022 reflects that there are no more EB-2 immigrant visas left this fiscal year, which ends on September 30. On October 1, the annual green card caps reset!
In early September, U.S. Citizenship and Immigration Services (USCIS) indicated that the annual allocation of EB-1 and EB-2 green cards had been used. Although the current Visa Bulletin lists the EB-1 green card as current for all countries and is therefore accepting applications to register permanent residents (also called adjustment of status) in that category, those cases will remain pending until the start of the new fiscal year on October 1.
USCIS overestimated the number of applications required to meet the annual cap to use all available green cards, which is a very good thing. In the previous fiscal year (FY 2021), more than 200,000 green cards were available, but were never issued due to embassy and consular closures and case backlogs during the pandemic.
Given the backlog particularly in the EB-2 category for individuals born in India and China, I suggest you consult an immigration attorney to assess whether you would be a candidate for the EB-1A extraordinary ability visa.
Regarding the fine you mentioned: USCIS does not impose a penalty on employers or employees if a green card candidate changes jobs before receiving a green card. However, your employer can seek reimbursement from you for some green card costs, usually based on some pre-arranged contract prior to starting the green card process. An immigration attorney can help you determine the best path forward if you’re facing this situation.