Silicon Valley Immigration Lawyer Blog

Here's a common scenario: Your Silicon Valley employer sponsors you for an H-1B visa, and then sponsors you for an employment-based green card. How long it takes to actually get your green card depends on your priority date (the date your employer submitted the first application), your visa preference category, and your country of chargeability (usually your country of birth). It can take a relatively short time, to several years.

Each year 140,000 employment-based green cards can be issued. Over the years well over 140,000 annually have applied, resulting in a long queue. Once your priority date becomes "current", you can then apply for a green card. About 85% of the 140,000 green cards go to people currently living in the U.S. who apply for an "adjustment of status". The remaining 15% go to people seeking to immigrate from abroad. The USCIS estimates that there are currently 234,000 pending employment-based adjustment of status applications pending.

Until recently, the only way to estimate how long it would take for your priority date to become "current" was to view the Department of State's monthly Visa Bulletin. The Bulletin shows the current priority dates within each preference category. You can view the Visa Bulletins over several months and track the movement in particular categories.

Recently the USCIS started providing more detailed information by publishing sets of charts. The charts track the USCIS' total pending inventory of applications for employment-based adjustment of status. The charts show how many pending adjustment of status applications in each preference category have priority dates in a given month and year. You can use the chart to determine how many applicants in your preference category are ahead of you in line for a visa number by adding up the number of cases with an earlier priority date than your own.

For example, the chart below shows the 1st, 2nd, and 3rd preference categories. Suppose your priority date is January 2003, and you are approved for 2nd preference. Using the chart below you can see that there are six other adjustment of status applications with the same priority date. You can add up how many 2nd preference applicants have an earlier priority date by adding up all the numbers starting at the beginning of the table, and ending with December 2002. In this case, there would be 130 applications with a priority date earlier than yours.

I-485 USCIS Partial Chart

Continue reading "Employment-Based Green Card Waiting Times Explained by USCIS" »

Two bright, energetic, Palo Alto-based entrepreneurs recently sent me a link to Startupvisa.com. A visa designed for the entrepreneurs of a start-up company would have been perfect for them. Instead, we had to wrestle their jobs and their company into the H-1B category.

The H-1B visa permits a U.S. employer to employ a professional worker. Using the H-1B category for entrepreneurs can be challenging because often the new venture begins as a one or two-person company. A typical case is the foreign national who comes to the U.S. as a student to earn a Master's degree. While in school, they develop their own ideas for new ventures, and also develop business contacts. Upon graduating (or even before), they begin working on their new ideas and attract venture funding. Soon after, they establish a formal business entity. At some point, the foreign national realizes that they need the appropriate visa to continue working on their new U.S. venture.

The challenges with a small, newly established company sponsoring its only employees for an H-1B visa rest, in some part, with the USCIS' perception that small companies do not need H-1B workers. Companies with less than 25 employees, established less than 10 years ago, and with gross annual income under $10 million will be highly scrutinized for fraud, and will likely be required to submit additional documentation establishing the need for the professional worker. An additional challenge with the H-1B visa is the annual cap 0f 65,000 new visas. Except for this year, the past several years have seen the cap reached within the first week that new visas become available.

The E-2 visa is supposed to be an option for investors and entrepreneurs. However, the challenges with this option are that the entrepreneur must also be the investor, and that this visa is only available to people from certain countries. An employee of an E-2 qualifying company can actually qualify for an E-2 without being an investor, as long as they are going to be employed in an executive or supervisory capacity, or if they have essential skills or knowledge. However, the challenge is that the employee must be from the same country as the principal investors, and the principal investors cannot be U.S. citizens or U.S. permanent residents.

Continue reading ""Start-Up" Visa Makes Sense for Silicon Valley" »

California's "best and brightest" immigrants are leaving the Golden State in search of greener pastures back home. USA Today reports on highly-skilled immigrants foregoing their American dreams to pursue careers back home. The article highlights Indian and Chinese workers who come to the U.S. to earn Bachelor's or Master's degrees from U.S. Universities, obtain H-1B visas to use their talents working for U.S. employers, begin the arduous green-card process, yet return home before the multi-year green-card process is complete. The article raises the often cited concerns that the U.S. may lose its competitive edge in science, technology and other fields as some of its smartest take their U.S. acquired knowledge and experience back to their home country.

The reasons cited for leaving include immigration delays, better job opportunities, and family ties. It's no surprise that immigration delays send the brightest immigrants back home. The queue for Indian and Chinese green card applicants can be as long as four to eight years, or even longer. During that time, an applicant will not be able to advance or work in a different job. Not being able to advance provides at least one basis to return home seeking better job opportunities. Returning immigrants often face great opportunities with their U.S. degree, and their experience of working for a U.S. company.

Continue reading "Silicon Valley Immigrants Included in Talent Exodus" »