Posted on

Dear Sophie: Can we sponsor an H-1B university researcher for an EB-1B green card?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

Our company is considering sponsoring a job candidate for an EB-1B green card. She currently has an H-1B research position at an American university. How long does the EB-1B process take? What can we do to maximize our chances for approval? Could we sponsor her for more than one green card to improve her chances?

— Passionate in Pleasanton

Dear Passionate,

Thanks for your questions. The situation you describe is complicated, so as always, please consult with an experienced immigration attorney to explore your company’s options in more detail. In a recent podcast, I talk about how tech companies can use the EB-1B green card to attract and retain researchers. In a nutshell, yes, you can hire her, and sponsor her for more than one green card simultaneously. Here’s how.

The time it takes for a candidate to receive an EB-1B green card depends on their country of birth. If your candidate was born in China or India, she faces waiting several years for an EB-1B green card unless she already has a priority date. For candidates born in any other country, the EB-1B green card process could still take close to a year or more even if the I-140 green card petition and I-485 adjustment of status form are filed together or if the I-140 petition is filed with premium processing. Regardless, in order for the candidate to remain in the U.S. to live and to start working for you in the short term while your company pursues an EB-1B green card, your company would need to sponsor her for an H-1B or O-1A in the interim.

Before I go into more detail about the requirements for the EB-1B green card and what it takes to submit a strong EB-1B petition, here are some things to keep in mind:

  • Since the candidate works for a university, she likely has a cap-exempt H-1B, which means that the H-1B was not subject to the annual numerical cap and lottery. Unfortunately, a cap-exempt H-1B can only be transferred to another cap-exempt employer, such as another university, a nonprofit, or a government research organization. Your company will need to sponsor the candidate for a new, cap-subject H-1B by registering her for the lottery next March. If the candidate is selected in the lottery and the H-1B petition is approved, the earliest she can start working for you would be Oct. 1, 2021. Alternatively, we can work with you to explore options for alternative cap-exempt H-1Bs that you can get any time of year.
  • If the job candidate was born in China or India and her current employer is sponsoring her for a green card, she may be able to retain her priority date, or place in line for a green card, when your company sponsors her for one.
  • With limited exceptions, the U.S. has stopped issuing green cards and H-1B visas to individuals outside of the U.S. at least through the end of the year under President Trump’s proclamations, so the candidate should try to remain in legal status in the U.S. without departing.

To sponsor an individual for an EB-1B green card as a private company (and not a university), your company must already employ at least three full-time researchers and show accomplishments in the field of research. Your company must show that the EB-1B candidate has been recognized for exceptional achievement in her or his field of research.

The candidate must have at least three years of research experience and must meet two of the following criteria:

  • Has received major prizes or awards for outstanding achievement.
  • Belongs to associations that require outstanding achievement.
  • Work or research has been written about in professional publications or other major media.
  • Has judged the work of others either alone or while serving on a panel.
  • Contributed original scientific or scholarly research in their field.
  • Authored scholarly books or published articles.

It’s similar to an EB-1A but a little bit easier.

After working with counsel to determine the two qualifying criteria to focus on, make sure your company and the candidate assemble strong, compelling evidence and documentation. Supplement that documentation with letters of endorsement from experts in the candidate’s area of expertise. Keep in mind that U.S. Citizenship and Immigration Services (USCIS) evaluates the EB-1B petition based on whether sufficient evidence is submitted to support two of the criteria and the quality of the evidence that indicates the candidate is outstanding in their field. As usual, any documents in a foreign language must be translated and certified.

Your company will need to include the job offer letter indicating the intention to employ the candidate in a permanent research position in their field in addition to evidence that your company employs at least three researchers and has achieved accomplishments in the research field. These are usually pretty hefty packages of evidence and documents that attorneys assemble.

As with any application or petition, retain clear guidance because small mistakes on the I-140 green card petition can delay or even derail a case. For example, make sure you use the most recent edition of the necessary forms. Make sure the correct pages are signed in blue or black ink by the appropriate parties, keeping signatures inside the box so it can be scanned. Make sure your company submitted the correct filing fee amounts and premium processing fee, if applicable. Submit the application packet to the correct address and make sure it can be tracked.

To answer your last question, yes, your company can sponsor a candidate for more than one green card to improve the chances of receiving one.

Both the EB-1A green card for individuals with extraordinary ability and EB-2 NIW (National Interest Waiver) for individuals with exceptional ability do not require employers to go through the lengthy PERM labor certification process. However, they have rigorous requirements. Check out this overview on those two green cards and how to prepare.

Three other green card options have less stringent requirements than the EB-1A and EB-2 NIW, but require PERM labor certification:

For more details on the PERM labor certification process, check out my podcast on the topic.

Let me know how things turn out.

Good luck!

Sophie


Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!

Read More

Posted on

The H-1B visa ban is creating nearshore business partnership opportunities

In June, President Donald Trump signed an executive order temporarily suspending work visas for H-1B holders, which includes skilled workers like software developers.

Considering that 71% of workers in Silicon Valley and other tech hubs are international, the order poses a number of logistical and business challenges for startups.

While nearshoring was an option before the virus struck, the urgency to nearshore due to the visa ban, combined with the remote revolution taking place, has meant companies are reconsidering it as a solution. As a result, the suspension presents an opportunity for companies to bring on board software development capabilities from abroad.

Nearshoring is a way to hire teams in locations that share similar time zones and are easily accessible. Nearshoring also enables U.S. companies to utilize services from close locations, where the talent, working conditions, and salaries are more favorable. In fact, it can save businesses up to 80% on costs, while providing employees with flexibility, autonomy and better career development pathways.

Not only is nearshoring a pragmatic response to the visa ban, it has the potential to be a long-term hiring alternative for businesses. Here’s how:

Laying the groundwork for remote teams

Amid the pandemic, demand for developers has remained high, no doubt due to companies needing teams to build, maintain and optimize digital platforms as they transition to online services. The visa ban means that businesses in foreign markets can help meet such demand, particularly as tech talent from other countries comes with a fresh, different skill set that empowers companies to solve problems in new ways.

In the past, moving to the U.S. and living the American Dream oriented many foreign businesses’ professional paths. However, the trend has changed. The appeal of the United States was slipping prior to the virus — it ranked 46th out of 66 for “perceived friendliest to expats” — and post-COVID-19 may be even more detrimental.

In a more connected world, businesses and individuals can reap the benefits of U.S. opportunities — top technology stack, access to exciting companies and world-class research — without having to actually live in the country. In this respect, nearshoring means foreign teams have the best of both worlds: the comfort of home and ties to an international powerhouse.

The remote shift is demonstrating that teams can function well at a distance; some studies have even revealed that employee productivity and happiness benefit from remote work. In the global remote shift, nearshoring is being seen as an accepted and advantageous model. Companies that opt to nearshore in response to the visa ban can take advantage of the changing tides and use this time to lay the groundwork for best practices within remote teams. For instance, by devising policies for things like communication, tracking progress, vacation and development plans according to the new conditions and specific mission statements. As a result, businesses can seamlessly build professional partnerships.

Another advantage of nearshoring is that the flexible teams contribute to a ready-to-scale model for startups. By having development partners located in different countries, companies can network on a wider level and grow faster among local markets. Rather than start from scratch when expanding, nearshoring gives companies a presence — no matter how small — across regions, which can later be built upon.

Attracting fresh investment

Similar to having a readiness to scale, the H-1B visa suspension positions nearshoring as a viable way to strategically partner with foreign development studios. In contrast to offshoring, nearshored businesses are often more vested in the projects they work on because they share time zones and are thus able to work more closely and with greater agility. Within startups, such agility is essential to continuously test, iterate and pivot products or services. Outsourced teams often have defined outputs to achieve, while freelancers are split across several projects, so aren’t completely ingrained in companies’ visions.

With nearshoring, startups can target partners that have experience in a particular area of business or with a specific tech feature and accelerate their time to market. Instead of building systems from zero, they can launch into version 2.0 because the wider choice of experts means there’s a higher chance of partnering with teams who already understand how the industry functions. Nearshore partners also have vast knowledge across industrial fields at a level that is impossible for direct hires to have. Companies therefore don’t have to tackle the difficulty of curating a great team, because nearshore partners are an already solid pairing.

When it comes to funding, this synchronicity, agility and preparedness indicates that a startup has momentum. For investors, nearshoring shows that the company has on-the-ground insights about potential markets to disrupt, and that the business model can thrive using remote teams. As the world braces itself to go fully digital, startups that have already adopted remote processes that catalyze growth will no doubt catch the attention of investors.

Promoting greater diversity in teams

Latin America is a clear choice for U.S. businesses looking to nearshore. The region’s proximity, increasing internet penetration, and impressive number of highly skilled developers are all a significant draw.

It’s also worth noting that diversity plays a core role in nearshoring. Currently within tech, Hispanic workers are noticeably underrepresented, making up a mere 16.7% of jobs. Despite the physical distance, nearshoring in Latin America can bring people from different social and economic backgrounds into companies, boosting their visibility in industries as a whole, and setting a firm foundation for equality.

Studies also show that diversity influences creativity among teams, as well as increases company revenue.

Moreover, nearshoring accelerates diversity in a manner that isn’t disruptive. Foreign team members don’t have to sacrifice their home, friends and family to further their professional career. Relocating to the U.S. can be daunting for people who haven’t previously worked abroad, especially when factoring the change in living costs and new culture norms. Nearshoring means teams can work from locations they’re familiar with, so need less time to get up to speed on business processes. They additionally have the emotional support of their social circles nearby, which in the current climate is important for employees’ personal and professional wellbeing.

Leveraging the right partnership

Research is key to successfully find a nearshore company, and startups don’t always have the time and resources to conduct an in-depth analysis of locations and their ecosystems. The most practical manner to nearshore the right talent is with a nearshoring partner that is responsible for scouting, vetting and communicating with foreign developers.

To find an appropriate partner, ensure that they have previous experience in your industry and positive testimonials from startups in your location. They should also have a clear presence in the regions they operate in; try checking online for their press releases, events they sponsor and general content that validates they are active and respected.

Once you’ve found an appropriate nearshore partner, rely on them to know what teams in your preferred locations need in terms of culture. Nearshore partners will essentially be your development partner — you can leverage them to be your whole Research and Development department. They can guide you on the tech side of your business, advise you on the right team at the right time, give you direction on stack and methodology, and curate the right environment for the team to be productive. In contrast, hiring freelancers comes with risks because you won’t necessarily know the specific needs of the location they’re in. Be aware — if there’s a cultural disconnect, you risk not finding a partner, but a vendor that’s buying into a superficial version of your startup, as opposed to your real startup vision.

Once you’ve settled on a well-fitting nearshoring partner, ensure you have detailed contracts with all team members, as well as nondisclosure agreements. Nearshoring requires a level of mutual trust, however, at such an early stage of your company’s lifecycle, you need to know that your processes and data will not be revealed to competitors. Check that your nearshore partner’s financial status is secure and sufficient for a long-term model. Correspondingly, service level agreements will set the parameters for job responsibilities and deliverables. After all the formalities are covered, you can focus on curating fruitful, long-term relationships.

Acclimatizing in the new normal

The COVID-19 crisis has made recruitment a remote-dominated sphere. Traditional modes of hiring are being reassessed, and companies are realizing that teams don’t have to be in an office to be productive. In fact, not having to cover visa and administration fees for foreign employees is much more cost-effective for companies.

As time passes and businesses develop habits best-suited to remote work, nearshoring will become increasingly popular. People are prioritizing joining teams where their career development, well-being and ethics are protected, all of which nearshoring can offer with the added benefit of not completely upheaving workers’ lives.

Startups who embrace nearshoring early on could find themselves competing with top tech firms that struggle because of recruiting limitations. With the end of the pandemic unknown, and thus no hard deadline for the visa ban, tech companies have to look at alternative modes of building teams. Startups have the advantage of revising their remote product development approach without disturbing workflows too severely. They are also known for pioneering fairer and more innovative workplaces that are enticing for a broader scope of employees.

Nearshoring is mutually beneficial because developers don’t have to give up their culture for a great employment opportunity, and businesses can reap the benefits of diversification. Ultimately, the H-1B visa suspension could stimulate true globalization in tech, where companies can achieve their best performance using global resources.

Read More

Posted on

Dear Sophie: Latest immigration and H-1B updates

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

I work in people ops in tech. Restrictions and conditions placed on visas and green cards seem to be continuously changing.

What’s the latest for tech, such as H-1Bs and other nonimmigrant visas?

—Strong in San Francisco

Dear Strong:

And what a summer it’s been! Fortunately there’s a bunch of great news in immigration this week. I’d love to dive in to new State Department exceptions that apply for new H-1B visas at embassies and consulates around the world. This will help a lot of tech companies whose H-1B employees got stuck outside the U.S. on trips for “visa stamping” (consular interviews) earlier this year.

Before we get into that though, I wanted to share some additional and recent top immigration highlights: First, U.S. Citizenship and Immigration Services (USCIS) is restarting interviews (our team just handled several naturalization interviews remotely for clients across the country) and it looks like green cards will be scheduled again soon. Second, USCIS announced that it is canceling plans to furlough more than 13,000 employees next week, thereby averting a massive slowdown of visa and green card processing. Third, for those Dreamers out there and the tech companies who love them, USCIS is starting to accept some DACA (Deferred Action for Childhood Arrivals) renewals and work permit applications.

Read More

Posted on

Four views: How will the work visa ban affect tech and which changes will last?

The Trump administration’s decision to extend its ban on issuing work visas to the end of this year “would be a blow to very early-stage tech companies trying to get off the ground,” Silicon Valley immigration lawyer Sophie Alcorn told TechCrunch this week.

In 2019, the federal government issued more than 188,000 H-1B visas — thousands of workers who live in the San Francisco Bay Area and other startup hubs hold H-1B and H-2B visas or J and L visas, which are explicitly prohibited under the president’s ban. Normally, the government would process tens of thousands of visa applications and renewals in October at the start of its fiscal year, but the executive order all but guarantees new visas won’t be granted until 2021.

Four TechCrunch staffers analyzed the president’s move in an attempt to see what it portends for the tech industry, the U.S. economy and our national image:

Danny Crichton: Trump’s ban is a “self-inflicted” blow to our precarious economy

America’s economic supremacy is increasingly precarious.

Outsourcing and offshoring led to a generational loss of manufacturing skills, management incompetence killed off many of the country’s leading businesses and the nation now competes directly with China and other countries in critical emerging industries like 5G, artificial intelligence and the other alphabet soup of technological acronyms.

We have one thing going for us that no other country can rival: our ability to attract top talent. No other country hosts more immigrants, nor does any other country capture the imagination of a greater portion of the world’s top minds. America — whether Silicon Valley, Wall Street, Hollywood, Harvard Square or anywhere in between — is where smart people congregate.

Or at least, it was.

The coronavirus was the first major blow, partially self-inflicted. Remote work pushed employers toward keeping workers where they are (both domestically and overseas) rather than centralizing them in a handful of corporate HQs. Meanwhile, students — the first step for many talented workers to enter the United States — are taking a pause, fearing renewed outbreaks of COVID-19 in America while much of the rest of the developed world reopens with few cases.

The second blow was entirely self-inflicted. Earlier this week, President Donald Trump announced that his administration would halt processing critical worker visas like the H-1B due to the current state of the American economy.

Read More

Posted on

Dear Sophie: Which visa should a startup pursue to hire someone from Mexico?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

I work in people ops at a biotech startup. We received an application from a very promising candidate from Mexico for a job opening we’ve had listed for quite some time. Our company has never sponsored anyone for a visa. Which type of visa should we pursue, how much will it cost, how long will it take, and what should we keep in mind while working through the process?

—Puzzled in Petaluma

Dear Puzzled,

Thank you for your question! I’m excited to hear that your startup is looking to sponsor an international professional for the first time!

Professionals who are citizens of either Mexico or Canada may be eligible for a TN (Treaty National) visa. A TN visa holder’s spouse and dependent children are eligible for a TD (Treaty Dependent) visa.

Read More

Posted on

Attorney Sophie Alcorn answers readers’ immigration questions

We had a great time hosting noted immigration attorney Sophie Alcorn on a live conference call with Extra Crunch members earlier this week.
Sophie writes our “Dear Sophie” column, where she answers questions about immigration status, particularly for founders and others in the tech ecosystem who want to work in …

Read More