Here is another version “Dear Sophie,” an advice column that answers immigration-related questions about working at tech companies.
“Your questions are critical to spreading the knowledge that allows people around the world to rise above borders and pursue their dreams,” said Silicon Valley immigration attorney Sophie Alcorn. Whether you’re in People Ops, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in the next column.
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Dear Sophie,
I was laid off and am on H-1B. I have enough savings to live for a while. What should I do if I am fired? I am on H-1B, approved I-140 and I-797 expiring in March 2024.
If I have to leave the US, can I transfer my current I-797 to my next employer? Are there any issues I should be aware of?
– Renovated and unemployed
Dear Upended,
I’m so sorry to hear about your layoff, and it must have added stress to your life! Your questions are at the forefront of the thousands of other tech companies getting fired from Twitter, Facebook, Stripe, Brex, Lyft, and more.
I understand that this is an incredibly stressful time. It is my personal life mission to help immigrants have the peace of mind to stay in the United States, keep their families safe, and build on their dreams of making the world a better place. I’m so happy to have the opportunity to share my advice through this column!
The good news is that US Citizenship and Immigration Services (USCIS) allows you a 60-day grace period to stay in the US if you lose your job while on E-1, E-2, E-3, H-1B, H- status. 1B1, L-1, O-1, or TN visa. And we can turn your 60-day grace period into an eight-month immigrant runway — it’s possible to extend your stay in the U.S. beyond 60 days by changing from H-1B to another category such as a visitor, student, or dependent spouse.
When individuals needing visa sponsorship are laid off, we hear about their ability to stay in the United States beyond the 60-day grace period, especially if they have a home, a spouse, or dependent children. in school. People often ask me what to do if they can’t find a visa-sponsored job within the 60-day grace period, or if they can’t finally follow their heart and explore their own startup ideas.
Here are my tips on how to stay in the United States, as well as options and opportunities to keep in mind.
To work for another company, start interviewing now!
Unfortunately, you cannot transfer your current I-797 to your next employer. However, you can transfer your H-1B to your new employer following the H-1B application process. If approved, you will receive a new I-797.
Make every effort to find another job. Get as many interviews as you can. Connect with everyone in your network – friends, family, former colleagues, co-workers, neighbors and acquaintances. Become a social media user and attend networking events. Also, look at where venture capital is flowing these days; Companies that receive Series A funding or more may be hiring.
At a job interview, be direct about your desire to transfer your H-1B to a new employer. If the company refuses to sponsor you, move on. Ideally, you should receive no more than 45 days of employment during your 60-day grace period unless you are applying for another failure status because it can take several weeks to process and file the H-1B transfer.
Additionally, if you qualify for an O-1A special skills visa, you can use an agent to file an O-1A petition on your behalf, making your visa independent of any employer. This gives both of you reemployment because you can change or add paid jobs in the United States without having to update the petition regularly, as long as you generally continue to work in your field.
Start now to build your own startup!
If you want to start your own tech venture, find someone to be your co-founder. Find out if you qualify for an O-1A ASAP or decide if you want to structure your resume to be compatible with an H-1B transfer. Talk to both an immigration attorney and a corporate attorney to help you design the best structure for your startup and determine an immigration strategy for visa sponsorship for your startup.
For many people, if you qualify, I suggest sponsoring an O-1A for your startup, which gives you more flexibility and freedom than an H-1B transfer. Many individuals on H-1B visas in Silicon Valley and beyond are surprised when we tell them they already qualify for O-1A. The O-1A supplemental benefit currently serves as a stepping stone to eligibility for the EB-1A extraordinary ability green card.
Make a backup plan
Have a backup plan and work with an immigration attorney to review your options. You can transfer your H-1B, become an H-4 dependent visa holder if your spouse has an H-1B, or change your status to an O-1A visa.
Since you have an approved I-140 green card petition, you have several options to maintain your green card processing and transfer it to another company or file your own petition so that you are not dependent on any one company to obtain a green card and permanent residence in the US.
The good news is that your green card priority date can be retained and used on another EB-1, EB-2 or EB-3 I-140 petition! Your priority date or dates are:
- A PERM application is submitted to the US Department of Labor for USCIS to obtain an EB-2 Advanced Degree, Specially Skilled Green Card, or EB-3 Skilled Worker Green Card.
- or Form I-140 green card application filed with USCIS.
This means that if you apply for a green card yourself or if your new employer agrees to sponsor you for a green card, you will hold your place in the green card line – and not have to go to the back of the line. If you were born in India or China and your I-140 application is for an EB-2, EB-2 NIW (National Interest Waiver), or EB-3 green card, ask your immigration attorney to evaluate whether you qualify. A current applicant for an EB-1A green card regardless of country of origin.
Start collecting documents
While you are waiting for job interviews and job offers, be sure to gather all the documents you need to submit to your new employer for H-1B transfer. This includes:
- A copy of your current visa and I-797 and I-94 forms
- Your work experience
- Pay slip from your previous employer
- Letter of recommendation
- University degree and transcript
- Academic evaluation
If you plan to pursue an O-1A, begin collecting letters of recommendation and evidence that you meet at least three of the eight O-1A requirements:
- Nationally or internationally recognized awards;
- Proof of employment in an important capacity for a reputable organization;
- Articles written about you or your company;
- Evidence that you have competed in a hackathon or other competition;
- It proves that he commands a high salary.
Check out this Dear Sophie column where I go into detail about each O-1 requirement.
H-1B transfer after finding a job
Whether you’re self-employed or working for another company, make sure you’re on time: Form I-129 must be submitted to USCIS on or before the 60th day since your H-1B or O-1A application. They were fired.
If you’re working for a new company, ask your new employer to start the Labor Status Application (LCA) process ASAP. Submitting the LCN to the US Department of Labor for approval is the first step in transferring your H-1B. The Department of Labor usually takes seven to 10 days to process the LCA. The approved LCA must be included with the H-1B petition your new employer submits to USCIS on your behalf.
Your new employer may request premium processing for your H-1B application, which means that USCIS will issue a request for evidence or make a decision on your case within 15 days. Premium processing is also available for O-1A applications.
As soon as USCIS receives your H-1B or O-1A application and issues an I-797 Notice of Receipt, you can begin working for your new employer. As long as your H-1B or O-1A I-129 is filed on or before the 60th day of your grace period, you will be allowed to remain in the US while you await a decision from USCIS. That means your stay will exceed the 60-day grace period!
My best
Sophie
Do you have a question for Sophie? Ask him here. We reserve the right to edit your submissions for clarity and/or space.
The information provided in “Dear Sophie” is general information and not legal advice. For more information about “Dear Sophie” limitations, please see our full disclaimer. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. She is accepting applications if you want to be a guest!
