Ask Sophie: Can you explain the H-1B visa, EB-2 green card transfer and Visa Bulletin?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

My startup is hiring. A leading candidate for one of the positions has an H-1B visa and has been waiting for an EB-2 green card for more than four years. This will be the first time our startup will navigate immigration. 

Can you explain the H-1B visa and EB-2 green card transfer process? When do you stick with EB-2? The “Visa Bulletin” changed?

— Curious Co-Founder

Dear Curious,

Greetings from Disrupt SF! Last week the U.S. Department of State (DOS) published the Visa Bulletin for October. It’s significant because October 1 marks the start of the new federal fiscal year, FY 2024. In FY 2024, about 165,000 new employment-based green card numbers will be available.

Many green card categories will advance or at least remain the same this October. The great news is that the U.S. Citizenship and Immigration Services (USCIS) announced it will accept employment-based adjustment of status (Form I-485) based on the date of filing, which is later than the final action date and will enable more people to take the final step in their green card process. For example, the date for filing for adjustment of status for an EB-2 category green card for individuals born in India is May 15, 2012, while the final action date for individuals in the same category is January 1, 2012, so somebody who got a priority date of May 15, 2012, would now be able to file their I-485.

Because getting the timing right for an H-1B transfer along with green card sponsorship can be tricky, I suggest working with an immigration attorney to help you devise a timely immigration strategy for your startup’s prospective hire.

Let me start by giving an overview of the H-1B specialty occupation and the EB-2 green card for individuals with an advanced degree or exceptional ability.

The big picture

Thanks to the American Competitiveness in the 21st Century Act of 2000 (AC21), individuals facing a delay in their ability to file for adjustment of status (Form I-485), which is the last step in the green card process, have some flexibility to change jobs or employers while waiting for their green card. AC21 also allows an employer to renew an employee’s H-1B visa beyond the maximum six-year stay in the U.S. if the individual is at certain stages of the green card process.