When should we start the employment-based green card process for our employees?
This is a question we frequently answer for our corporate clients who are looking to recruit and retain foreign nationals who are in the U.S. on a temporary visa classification, such as the H-1B, TN, E-2, L-1, etc. The answer is: it depends! Here are some key factors to consider when making this decision:
Is the employee's current visa classification dual intent? If a visa classification is dual intent, that means that a foreign national can hold that nonimmigrant status, and also pursue permanent residence. They are still able to travel in and out of the U.S. (with certain requirements), and extend their nonimmigrant status. The H-1B and L-1 classifications are both dual intent. If an employee's visa classification is not dual intent, that does notmean that you cannot sponsor the foreign national for permanent residence. It does mean that careful strategic planning is required. In addition, it's important that both the employer and employee have a clear understanding of the potential limitations on travel and/or extending the visa later.
What is the employee's long-term immigration plan? In many cases, the green card process will take at best a couple of years to get through, and potentially much longer. Just having started the green card process is not enough to allow a foreign national employee to remain in the U.S. and work. Therefore, starting the green card process sooner rather than later is often beneficial.
If the employee is on H-1B status, when does their six year limit of H-1B status expire? It is possible to extend the green card beyond the 6th year limit in certain circumstances, but the employee must be at a certain point in the green card process. Also, keep in mind it's not possible to extend an L-1 beyond the 5th year (for L-1B) or 7th year (for L-1A), regardless of the green card process.
Does the foreign national have any children who may age out of the green card process? If so, are you willing to plan the green card process to try to prevent the children from aging out?
Does your organization have a written immigration sponsorship policy? If so, what does the policy say about when you can potentially start the green card process, and is there any flexibility in that policy? Keep in mind that the policy may depend on the position, the immigration status of the foreign national, etc.
Who will pay for the green card process, including legal and filing fees? Keep in mind that the employer must pay certain fees associated with the green card process (for example, the fees associated with the PERM labor certification process). Are those fees built into the current budget? If not, can they be added now, or a future time?
Are you able to use green card sponsorship as a recruitment and/or retention tool? Sometimes a foreign national candidate will negotiate a commitment for the employer to start the green card process within a certain timeframe. Other times, the employer will commit to sponsoring for the green card process within a certain timeframe, or will begin the green card process perhaps sooner than is otherwise required, as a way to retain their employee.
As you can see, there is no one definitive answer as to when an employer should start the employment-based green card process for their employees, but there are multiple factors to consider. Planning ahead and having clear and consistent communication can smooth the path and create a win-win for everyone involved!
If you are not yet a Sumner Immigration Law client and you’re looking for an experienced, empathetic, and efficient team to help you navigate the process with confidence, please contact us today and set up your initial consultation to get the process started! You can set an appointment online. You can also call us at 804-396-3412 or send us an email atinfo@sumnerimmigration.com. We are immigration lawyers in Richmond, VA but we serve clients throughout the U.S. and around the world. For more information on our firm visitWho We Are and What Makes Us Different! We look forward to hearing from you!
As always, the above information is for educational purposes only and is not legal advice. Please speak with a qualified immigration lawyer before taking action.
