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Dear Sophie: How can employers hire & comply with all this new H-1B craziness?

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.”

Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one or two-year subscription for 50% off.


Dear Sophie:

I’ve been reading about the new H-1B rules for wage levels and defining what types of jobs qualify that came out this week. What do we as employers need to do to comply? Are any other visa types affected?

— Racking my brain in Richmond! 🤯

Dear Racking:

As you mentioned, the Department of Labor (DOL) and the Department of Homeland Security (DHS) each issued a new interim rule this week that affects the H-1B program. However, the DOL rule impacts other visas and green cards as well. These interim rules, one of which took effect immediately after being published, are an abuse of power.

The president continues to fear-monger in an attempt to generate votes through racism, protectionism and xenophobia. The fatal irony here is that companies were in fact already making “real offers” to “real employees” for jobs in the innovation economy, which are not fungible and are actually the source of new job creation for Americans. A 2019 report by the Economic Policy Institute found that for every 100 professional, scientific and technical services jobs created in the private sector in the U.S., 418 additional, indirect jobs are created as a result. Nearly 575 additional jobs are created for every 100 information jobs, and 206 additional jobs are created for every 100 healthcare and social assistance jobs.

The DOL rule, which went into effect on October 8, 2020, significantly raises the wages employers must pay to the employees they sponsor for H-1B, H-1B1 and E-3 specialty occupation visas, H-2B visas for temporary non-agricultural workers, EB-2 advanced degree green cards, EB-2 exceptional ability green cards and EB-3 skilled worker green cards.

The new DHS rule, which further restricts H-1B visas, will go into effect on December 7, 2020. DHS will not apply the new rule to any pending or previously approved petitions. That means your company should renew your employees’ H-1B visas — if eligible — before that date.

The American Immigration Lawyers Association (AILA) has formed a task force to review the rules and help with litigation. Although both the DOL and DHS rules will likely be challenged, they will likely remain in effect for some time before any litigation has an impact. They are actively seeking plaintiffs, including employees, employers and representatives of membership organizations who will be hurt by the new rules.

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Dear Sophie: Is it easier and faster to get an O-1A than an EB-1A?

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:

Is it easier and faster to get an O-1A extraordinary ability visa than an EB-1A extraordinary ability green card? What are the pros and cons of each?

—Outstanding in Oakland

Dear Outstanding:

Thanks so much for your timely questions about the extraordinary ability visa and green card. The short answer to your first question is yes, the O-1A visa is generally easier and faster to get than an EB-1A green card. In fact, I once helped a client get an O-1A approved in three days — of course, that was before the COVID-19 pandemic.

We recently launched “Extraordinary Ability Bootcamp,” a new, 15-module online course that takes a deep dive into the O-1A extraordinary ability nonimmigrant (temporary) visa, the EB-1A extraordinary ability green card, the EB-2 NIW (National Interest Waiver for exceptional ability) and what it takes to file a successful application in each category. Check my podcast where I discuss the Bootcamp in more detail. Register for the Extraordinary Ability Bootcamp and use code DEARSOPHIE for 20% off the enrollment fee.

In general, the requirements for a green card, which enable its holder to live permanently in the U.S., are more stringent than those for nonimmigrant visas, which only allow a temporary stay in the U.S. And U.S. Citizenship and Immigration Services (USCIS) typically takes longer to process green card petitions than nonimmigrant visa petitions. Moreover, the U.S. imposes numerical and per-country caps on the number of green cards issued each year, which means some green card categories for people born in some countries, such as India and China, face long waits. Only a few visas have an annual cap (like the H-1B), but the O-1A visa is not one of them.

That said, the EB-1A has one of the shortest USCIS processing times, compared to other employment-based green cards. Also, EB-1A petitions are eligible for premium processing, which requires USCIS to make a decision on a petition within 15 days (whether it is “calendar” days or “business” days is currently in flux!). The I-140 petition can be adjudicated quickly in a few weeks, but for somebody whose priority date is “current” on the Visa Bulletin, the determining factor for how long a green card takes is often the I-485 processing time in the local field office. Recently that’s been taking about 1.5-2 years for interviews in the Bay Area.

Meanwhile, nonimmigration visa petitions can face delays for a number of reasons, but a delay happens most often when USCIS responds to a petition with a Request for Evidence (RFE). An RFE is a written notice from USCIS seeking additional evidence to make a decision on a case. During the past few years, the number of RFEs issued by USCIS for both visas and green cards has increased substantially.

Last month (September 2020) USCIS extended its policy of giving petitioners an extra 60 calendar days to respond to certain USCIS notices, including RFEs, intent to deny, revoke, rescind and terminate due to the ongoing coronavirus pandemic. For any of these notices dated between March 1, 2020, and January 1, 2021, a timely response will be considered 60 days after the date listed on the notice. Whether you want to take advantage of this extra time is a conversation to have with your attorney, based on the strength of your pending petition and the urgency of getting an approval.

As you probably know, the O-1A visa is for individuals who have achieved national or international acclaim and have risen to the top of their field in the areas of science, education, business or athletics. The EB-1A enables individuals who have achieved substantial international or national success in their field due to their extraordinary talent to live permanently in the U.S.

Here’s a summary of the pros and cons of the O-1A and the EB-1A:

O-1A NONIMMIGRANT VISA

(Temporary Stay)

EB-1A GREEN CARD

(Permanent Residence)

Pros

  • Easier standard than EB-1A.
  • A change of status can be processed by USCIS in a few weeks.
  • Eligible for premium processing.
  • Unlimited extensions possible.
  • Does not require an LCA or PERM.
  • No annual cap.
Pros

  • Possible to self-petition without an employer sponsor or job offer.
  • I-140 is eligible for premium processing.
  • Green card: Allows you to permanently remain in the U.S.
  • Does not require an LCA or PERM.
  • Five years after green card can apply for citizenship.
Cons

  • Requires employer or agent sponsorship.
  • Requires job offer or itinerary of gigs.
  • Individuals cannot self-petition.
  • Might require union letter or advisory opinion.
  • Not a green card (permanent residence).
Cons

  • Multiyear process.
  • High evidentiary standard.
  • Annual numerical and per-country caps exist.
  • Backlog for people born in India and China.
  • Under a presidential proclamation issued in April, green cards not currently being issued at Consulates.

Keep in mind that like the EB-1, the EB-2 NIW (National Interest Waiver) green card does not require an employer sponsor. However, the eligibility requirements for the EB-2 NIW are less stringent than for the EB-1A. For individuals born in India and China, the downside to the EB-2 NIW green card is that they face a much longer wait compared to the EB-1A. Unlike the EB-1A, premium processing is not available for EB-2 NIW petitions.

Remember, U.S. embassies and consulates are not processing green cards so you should try to apply for a green card while you remain in legal status in the U.S. Otherwise, you may have to return to and stay in your home country for a while.

Still, getting a visa or green card abroad remains possible. I recommend working with an experienced immigration attorney to discuss which options best match your accomplishments, goals and timing. Remember, you can sign up for Bootcamp and use code DEARSOPHIE for 20% off the enrollment fee to get qualified!

All my best,

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!

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Dear Sophie: Now that a judge has paused Trump’s H-1B visa ban, how can I qualify my employees?

On Thursday, October 1, a federal judge issued a temporary injunction that halted a presidential proclamation issued in June suspending the issuance of visas for some foreign workers until at least December 31, 2020.

The Trump administration asserted that the COVID-19 pandemic and its ensuing economic impacts made it necessary to impose a moratorium on issuing new green cards, but Judge Jeffrey S. White of the U.S. District Court for the Northern District of California ruled that:

There must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative …

To explain how employers can respond to the judge’s order, TechCrunch columnist and Silicon Valley-based immigration lawyer Sophie Alcorn has written a supplemental column.

Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.


Dear Sophie:

I just saw yesterday’s news that a judge issued a temporary injunction on the presidential proclamation that halted the issuance of H, L and J visas for individuals abroad, but that it only protects companies in the plaintiff organizations. We have several new hires waiting for visa interviews outside of the U.S. How can they now qualify to get visas to come to the U.S.?

— Supercharged in Sunnyvale

Dear Supercharged:

I’m thrilled that Judge Jeffrey S. White of the U.S. District Court for the Northern District of California temporarily halted President Trump’s June proclamation, which suspended the issuance of H, J, L and other temporary work visas to individuals abroad.

Judge White found that Trump overstepped his authority and exercised “monarchical power” by barring these work visas, adding that it’s in the public interest to uphold the power of Congress in determining immigration matters. The executive proclamation “completely disregards both the economic reality and the preexisting statutory framework,” the judge wrote, “without any consideration of the impact on American firms and their business planning.”

The judge issued his order in response to a lawsuit filed in July by business groups against the Department of Homeland Security and the State Department. The suit challenged the legality of the June proclamation, which suspended the issuance of H-1B and other temporary work visas — and corresponding dependent visas — at U.S. embassies and consulates.

The order requires U.S. Citizenship and Immigration Services (USCIS), an agency within Homeland Security, and the State Department to resume processing and issuing the following visas to the plaintiff organizations that brought the lawsuit:

  • H-1B visas for specialty occupations, which means if you have an approved H-1B petition from the March 2020 H-1B visa lottery, your H-1B visa beneficiary could proceed for an interview consular processing.
  • H-2B visas for temporary nonagricultural workers.
  • H-4 visas for the dependent spouse and children of H-1B and H-2B visa holders.
  • J-1 visas for interns, trainees, teachers, camp counselors, au pairs or the summer work travel program.
  • J-2 visas for the dependent spouse and children of J-1 visa holders.
  • L-1 visas and Blanket L petitions for managers and executives or specialized knowledge workers.
  • L-2 visas for the spouse and children of L-1 visa holders.

However, the preliminary injunction only applies to members of the plaintiff organizations. Therefore, it may be prudent for your company to seek membership in one of the following plaintiff organizations, such as the U.S. Chamber of Commerce, in order to seek inclusion in the protected group to qualify for visa interviews for your employees:

Judge White’s preliminary injunction remains in effect until a final ruling in the case — or an appeal of the case. An appeal appears likely given that last month in a separate case, Judge Amit P. Mehta of the U.S. District Court of the District of Columbia declined to halt both the June proclamation and one issued in April barring green card applicants from entering the U.S.

Also last week, another piece of welcome news affecting immigration came from Judge White: In a separate case, he blocked USCIS’s new fee rule that was slated to go into effect on Oct. 2, 2020. The new rule would have dramatically increased the fees for applying for many immigration and naturalization benefits, including visa and green card petitions.

I’m glad to hear that your visa candidates, particularly for H-1B visas, are only awaiting visa interviews at a U.S. embassy or consulate. That’s because USCIS is expected to issue a new rule shortly that is designed to further restrict the issuance of H-1B visas. The new rule is expected to narrow which jobs qualify for an H-1B specialty occupation visa, limit or even exclude H-1B beneficiaries working at a third-party worksite, and significantly increase the minimum wage rate for H-1B recipients.

Remember that travel restrictions remain in place that bar foreign nationals who have been in any of the following countries during the past 14 days from entering the U.S.:

  • China
  • Iran
  • The European Schengen areas of Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino and Vatican City
  • United Kingdom
  • Republic of Ireland
  • Brazil

We often recommend that any new hires consider traveling to a country not on this list for at least a 14-day layover before proceeding to the U.S.

Congrats and best wishes!

Sophie


Adding to the recent string of good news in immigration, the Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced it will now issue PERM labor certifications electronically to employers, which should result in faster notifications. Employers must file for a PERM labor certification if they sponsor an employee for either an EB-2 or an EB-3 green card. The OFLC must approve a PERM application before an employer can submit an EB-2 or EB-3 green card petition to USCIS.


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!

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Dear Sophie: Will October 2020 Visa Bulletin changes expedite my immigration case?

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’ve been waiting for years for my green card. Is there any way to expedite my case? What does the October shift in Visa Bulletin priority dates mean for me?

—Waiting in Woodside

Dear Waiting:

Thanks! There are a lot of ways to speed up the immigration process. Great news — last week the State Department released the October 2020 Visa Bulletin, which significantly reduces the waiting time for many folks from around the world seeking green cards. Basically final action dates progressed for EB-1, EB-2 and EB-3 and are all current now if you can use categories besides being born in India or China! Feel free to check out my recent podcast on seven ways to expedite an immigration case and check out our upcoming free educational webinar on October 8 for the latest on H-1Bs and other immigration updates.

If you were born in India or China, dates for filing for Adjustment of Status and the National Visa Center also sped up significantly for individuals in these categories. Here’s a typical question I receive: “I’m currently in the U.S. in valid nonimmigrant status. If I was born in India or China, can I file my I-485 in October 2020?” See below to check your priority date and talk to an immigration attorney to see what you can file in October 2020!

Is my China/India priority date current in October?

Here’s an overview of how to figure out whether you can file your I-485 this month if you need to use the categories of being born in India or China:

  • Step 1. Double-check your I-140 I-797C approval notice to determine your category and priority date:
    • Sec. 203 (b)(1) → EB-1 Category
    • Sec. 203 (b)(2) → EB-2 Category
    • Sec. 203 (b)(3) → EB-3 Category
  • Step 2. Check out the October Visa Bulletin. To understand the Visa Bulletin in more detail:
    • The number of green cards the U.S. issues each year is capped based on the type of green card and the green card candidate’s country of birth
    • As my podcast on priority dates explains, it is the date your green card petition was submitted or the date your employer submitted your PERM labor certification application.
  • Step 3. Find the date in the cell at the intersection of your category and country.

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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!

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What does GPT-3 mean for the future of the legal profession?

Historically, lawyers have struggled with some AI-based tools

One doesn’t have to dig too deep into legal organizations to find people who are skeptical about artificial intelligence.

AI is getting tremendous attention and significant venture capital, but AI tools frequently underwhelm in the trenches. Here are a few reasons why that is and why I believe GPT-3, a beta version of which was recently released by the OpenAI Foundation, might be a game changer in legal and other knowledge-focused organizations.

GPT-3 is getting a lot of oxygen lately because of its size, scope and capabilities. However, it should be recognized that a significant amount of that attention is due to its association with Elon Musk. The OpenAI Foundation that created GPT-3 was founded by heavy hitters Musk and Sam Altman and is supported by Mark Benioff, Peter Thiel and Microsoft, among others. Arthur C. Clarke once observed that great innovations happen after everyone stops laughing.

Musk has made the world stop laughing in so many ambitious areas that the world is inclined to give a project in which he’s had a hand a second look. GPT-3 is getting the benefit of that spotlight. I suggest, however, that the attention might be warranted on its merits.

Why have some AI-based tools struggled in the legal profession, and how might GPT-3 be different?

1. Not every problem is a nail

It is said that when you’re a hammer, every problem is a nail. The networks and algorithms that power AI are quite good at drawing correlations across enormous datasets that would not be obvious to humans. One of my favorite examples of this is a loan-underwriting AI that determined that the charge level of the battery on your phone at the time of application is correlated to your underwriting risk. Who knows why that is? A human would not have surmised that connection. Those things are not rationally related, just statistically related.

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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.

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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.

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Dear Sophie: What’s the best option for international founders to expand in the US?

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’m a startup founder in Israel looking to expand into the U.S. market. What is the best visa option for me and a key member of my executive team to come to the U.S. to establish a sales and marketing office there? I would like my spouse and children to join me if my spouse can also work in the U.S. Is that possible?

— Tenacious in Tel Aviv

Dear Tenacious:

Thanks for reaching out. Based on your situation, the E-2 visa for treaty investors and employees may offer the best option.

An underutilized option, the E-2 visa is ideal for startup founders and employees whose home country has a treaty of commerce and navigation with the U.S. Israelis became eligible for E-2 visas just last year, joining the citizens of 80 other treaty countries. For more details on E-2 visas for founders and employees, check out Episode 16 of my “Immigration Law for Tech Startups” podcast.

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Dear Sophie: Can I still get a green card given COVID-19, layoffs and recent H-1B changes?

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 was recently laid off but found another position at a growing biotech company. My new employer just submitted the H-1B petition before the end of my grace period. I would like to stay permanently in the United States. How long do I have to apply for a green card?

If my employer isn’t willing to sponsor me, I heard I can self-petition for an EB-1A or EB-2 NIW green card?

—Hopeful in Hayward

Dear Hopeful:

Congrats on your new job offer and H-1B transfer. Many companies are hiring talented individuals right now. Every company has the right to their own immigration sponsorship policy, so it can be worthwhile to discuss this going into your new role to make sure that everybody’s on the same page as to how things can unfold with respect to your green card.

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