H-1B Green Card Challenges Without Loyalty Test: What Employers and Executives Should Know

The evolving discourse around H-1B visa holders’ green card applications, particularly concerns raised about the absence of a "loyalty test," calls for a closer look at how USCIS might adjust its adjudication standards. This issue, recently highlighted in public debates, underscores the importance for Chinese executives and employers to proactively manage immigration strategies.

Previously, the green card process for H-1B holders largely focused on proving the bona fide nature of the employment relationship and the applicant’s qualifications under the relevant category, such as EB-1A, EB-2 NIW, or EB-3. However, the concept of a "loyalty test"—although not explicitly codified in USCIS regulations—has surfaced in policy discussions as a potential criterion to assess whether applicants maintain a genuine and ongoing employment relationship with the sponsoring employer, especially for those seeking adjustment of status under employment-based categories.

From our practical experience at The Peng Law Group, we have seen that cases involving H-1B holders transitioning to green cards can face Requests for Evidence (RFEs) focusing on the authenticity and continuity of employment. Over the past year, approximately 30% of our H-1B to green card clients encountered RFEs requesting additional proof of "employer-employee relationship," including detailed organizational charts, payroll records, and letters demonstrating the applicant’s role and loyalty to the employer.

1. 1Ensure that all employment documentation clearly demonstrates the applicant’s integral role and commitment to the U.S. employer. This includes updated organizational charts, detailed job descriptions, and consistent payroll.
2. 2Consider alternative visa strategies such as the L-1 intracompany transfer visa or the EB-1C multinational manager/executive green card, which inherently emphasize the managerial role and company structure, thus reducing ambiguity around "loyalty." The EB-1C, for example, requires proof of managerial capacity and at least one year of employment abroad within the multinational company (8 CFR 204.5(j)(3)).

A recent case illustrates this point well: a fintech executive on H-1B faced an RFE demanding proof of his exclusive employment relationship amid a complex corporate restructuring. By quickly providing a detailed organizational chart and affidavits confirming his executive duties, we secured approval. However, had he pursued an L-1 or EB-1C route from the start, the risk of such challenges might have been lower.

For investors and high-net-worth individuals, the EB-5 program remains an attractive alternative, especially with the Rural or Targeted Employment Area (TEA) categories providing more flexibility and potentially faster processing. Keeping abreast of the latest Visa Bulletin and adjusting filings accordingly can help avoid delays.

In conclusion, the absence of a formal "loyalty test" in USCIS regulations does not mean that loyalty and genuine employment relationships are irrelevant. On the contrary, adjudicators increasingly scrutinize these factors. We advise clients to review their documentation thoroughly, maintain clear employment evidence, and evaluate if switching to L-1 or EB-1C categories better suits their long-term immigration goals.

This means you should immediately audit your current H-1B case files for completeness and consider early consultation on alternative visa strategies to safeguard your green card prospects.