Dear Sophie
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Dear Sophie: Can I hire an engineer whose green card is being sponsored by another company?
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 want to extend an offer to an engineer who has been working in the U.S. on an H-1B for almost five years. Her current employer is sponsoring her for an EB-2 green card, and our startup wants to hire her as a senior engineer.
What happens to her green card process? Can we take it over?
— Recruiting in Richmond
Dear Recruiting,
Congrats on finding the right candidate for your role. Your startup’s ability to take over the EB-2 green card process for this candidate — or whether you have to start the green card process from the beginning — depends on where she is in the green card process and whether the position you are offering is similar to her current role.
Take a listen to my podcast in which my colleague, Gilberto Orozco Jr., an associate attorney at my firm, and I discuss the American Competitiveness in the 21st Century Act — or AC21 — including “green card portability.”
Enacted in 2000, AC21 gives international talent in certain situations the flexibility to change jobs during the green card process and the ability to extend an H-1B visa beyond the six-year limit to avoid having to leave the United States while waiting for a green card. I recommend discussing your situation and goals with an experienced immigration attorney to determine your options.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
The process for EB-2 green cards
As I mentioned earlier, what happens to the green card process if your candidate changes jobs depends on where she is in the EB-2 green card process. There are two types of EB-2 green cards that have slightly different processes:
- EB-2 green card for advanced degree professionals
- EB-2 NIW (National Interest Waiver) for persons of exceptional ability
The EB-2 green card requires an employer sponsor and has a three-step process:
- Getting PERM (Program Electronic Review Management) labor certification from the U.S. Department of Labor.
- Submitting a green card petition (Form I-140) to U.S. Citizenship and Immigration Services (USCIS) for approval.
- Getting USCIS approval after filing an adjustment of status to permanent residence application (Form I-485), which can be filed along with Form I-140 depending on whether an EB-2 green card number is available based on the candidate’s country of birth, and being interviewed by a USCIS officer or obtaining a green card abroad through consular processing and the State Department.
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Dear Sophie: Should we sponsor international hires for H-1B transfers and green cards?
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,
My startup is desperately recruiting, and we see a lot of engineering candidates on H-1Bs. They’re looking for H-1B transfers and green cards. What should we do?
— Baffled in the Bay Area
Dear Baffled,
Yes, you should absolutely sponsor international talent for green cards! Listen to my podcast in which I discuss how to hire international professionals who are already in the United States by transferring their H-1B visa and using green cards as a benefit to attract and retain them.
The severe shortage of tech talent currently in the U.S. is prompting professionals to negotiate better compensation packages, and companies are increasingly using green card sponsorship as a benefit to attract and retain international talent.
Green card sponsorship as a benefit
Companies need to offer green card sponsorship to remain competitive. In fact, Envoy’s 2021 Immigration Trends Report found that 74% of employers said they have sponsored an individual for permanent residence (a green card), which is the highest percentage in the six years Envoy has asked this question in its annual survey. Rather than waiting until the last possible moment to sponsor an H-1B visa holder for a green card, 58% of employers say they are starting the process with the employee’s first year at the company on an H-1B visa. Most employers — 96% — said that sourcing international talent is important to their company’s talent acquisition strategy.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Sponsoring international talent for a green card is a way for companies to show they invest in and prioritize their employees and are willing to make a long-term commitment to a prospective employee. Employers can further distinguish themselves by offering to cover expenses for green card applications for a spouse and children, as well as a work permit application for a spouse.
Employers should also consider paying for an employee’s marriage-based green card as a third-party payor, particularly since marriage-based green cards take about one-third of the time and one-third of the investment compared to employment-based green cards. What’s more, most marriage-based green cards are not subject to annual quotas.
H-1B transfers are most common right now
Because most U.S. embassies and consulates abroad remain closed for routine visa processing due to COVID-19, most employers are hiring international talent who are already in the United States on an H-1B sponsored by another employer. In these situations, an employer must file for an H-1B transfer for the prospective employee. Take a look at a previous Dear Sophie column for more details on the H-1B transfer process.
The questions that employers ask me most often about the H-1B transfer process include:
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Dear Sophie: Is it possible to expand our startup 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.”
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,
My co-founders and I launched a software startup in Iran a few years ago, and I’m happy to say it’s now thriving. We’d like to expand our company in California.
Now that President Joe Biden has eliminated the Muslim ban, is it possible to do that? Is the pandemic still standing in the way? Do you have any suggestions?
— Talented in Tehran
Dear Talented,
Yes, it’s possible! Unfortunately, yes, the COVID-19 pandemic is still making the immigration process a bit challenging, but remember, where there’s a will, there’s most often, in immigration law, a way.
On his first day in office in January, Biden rescinded the ban on visas for many majority-Muslim countries, including Iran. The ban had been in place since 2017 and nearly 42,000 visa applications were denied, according to the U.S. Department of State.
Biden also allowed the bans on the issuance of H-1B, L-1, and J-1 visas and green cards at U.S. embassies and consulates that the previous administration put in place last year to lapse.
That means international startup founders like you and other international talent living outside the United States can start thinking about obtaining these visas and green cards without necessarily requiring exceptions to do so. In a recent podcast episode, I talked about these and other immigration-related changes, as well as those promised by the Biden administration. Take a listen to find out more!
As you probably know, most travelers from Iran are currently not allowed entry into the U.S. because of the COVID-19 travel ban, and most U.S. embassies and consulates are not open for routine visa and green card application processing. Because the United States has not had an embassy or consulate in Iran since the Iran hostage crisis of 1979, you and your co-founders should find out which U.S. embassies or consulates are currently processing routine visa and green card applications — and are in countries that are not on the suspended entry list — and apply there. We’re still waiting for detailed information from the State Department on the equivalent of reparations for individuals who were affected by the Muslim ban.
In addition, I recommend that you consult with an experienced immigration attorney who can help you devise an immigration strategy for yourself, your co-founders and your families based on your personal and professional goals. Now, here are a few options for you to consider.
L-1A visa to open a U.S. office for your startup
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Dear Sophie: What is a diversity green card and how do I apply for one?
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 started a tech company about two years ago, and ever since I’ve dreamed of expanding my company in the United States.
I would love to have a green card. Someone mentioned that I should apply for a diversity green card. Would you please provide me with more details about it and how to apply?
— Technical in Tanzania
Dear Technical,
As a startup founder from Tanzania, you have several immigration options available to you, including the Diversity Immigrant Visa (green card) Program.
My law partner, Anita Koumriqian, and I recently discussed the Diversity Immigrant Visa Program (DV Program) on a podcast episode. Take a listen for how to apply and tips for applying. Each year, the U.S. Department of State, which oversees the DV Program, reserves 50,000 green cards for individuals born in countries that have low rates of immigration to the United States. The State Department publishes instructions each year, which includes the countries whose natives are eligible to register for the annual diversity lottery. Here is the latest version.
How does the diversity lottery work?
You must register online in the fall — usually from early October through early November — for the annual random lottery by completing the Electronic Diversity Visa Entry Form (DS-5501). There is no cost to register for the lottery, but be aware that you will be automatically disqualified if you register yourself more than once, and incomplete forms will not be accepted.
Once you complete the online registration form, you will get a confirmation number. Do not lose this number! It is the only way to access the online system that will tell you whether you were selected in the lottery and are eligible to submit a green card application. In May, registrants can log into the online system to find out whether they’ve been selected. No notification will be sent by email or snail mail; checking online by entering your confirmation code is the only way to find out. After you enter your confirmation code online, you will receive a diversity visa number, which you will use to determine when you can file your green card application.
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Dear Sophie: What’s happening with visa application receipt notices?
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,
Our startup employs several individuals who are on work visas or have employment authorization. Many of them have been waiting for quite a while for the government to tell them their applications have been received.
Why? When will things be back on track? We have a few employees who are waiting for green cards, and a few F-1 visa holders who will be extending their OPT to STEM OPT.
Is there anything we can do?
— Patient in Pasadena
Dear Patient,
Thanks for your questions. Last September, an increase in applications submitted to U.S. Citizenship and Immigration Services (USCIS) amid COVID-19-related staff reductions created a substantial backlog and subsequent delay in USCIS sending out receipt notices.
My law firm partner, Anita Koumriqian, and I provided an update on receipt notices on a recent podcast. Dedicating an entire episode to receipt notices was unthinkable a year ago because applicants usually received receipt notices within one to three weeks after USCIS received their application.
For those who don’t know, USCIS sends a letter called a receipt notice to applicants when it receives an application. The receipt notice — also known as a Notice of Action or Form I-797 — contains information about:
- Whether the application was accepted, in which case you will be notified of how it will be processed, or rejected if it was not filed appropriately, such as not using the latest form or forgetting to check a box on the application form.
- A receipt number, which can be used to check the status of your case either online or by phone.
- The date your application was received, which for most green card applications is the priority date. (Priority dates for the EB-2 and EB-3 green cards are when the Labor Department received the PERM Labor Certification application.) A priority date determines your place in line for a green card number to become available based on the green card category and the green card candidate’s country of birth.
What caused the backlog?
Before the pandemic, applicants would typically be notified in less than one month after USCIS received their application. Currently, applicants are receiving their receipt notice as long as eight to nine weeks after USCIS received their application, and sometimes longer.
As I mentioned earlier, coronavirus-related staffing reductions at USCIS coupled with a substantial jump in the number of applications submitted prompted huge delays that began in September. Application submissions surged primarily due to:
- Anticipation of fee hikes that were slated to go into effect on October 2, 2020, before being blocked by a federal court judge.
- Rapid forward movement in the monthly Visa Bulletin for some green card categories, which meant green card numbers became available to many waiting in line.
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Dear Sophie: Does it make sense to sponsor immigrant talent to work remotely?
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,
My startup is in big-time hiring mode. All of our employees are currently working remotely and will likely continue to do so for the foreseeable future — even after the pandemic ends. We are considering individuals who are living outside of the U.S. for a few of the positions we are looking to fill.
Does it make sense to sponsor them for a visa to work remotely from somewhere in the United States?
— Selective in Silicon Valley
Dear Selective,
Thanks for reaching out — I’m always happy to hear about another fast-growing startup! If some of your leadership team is also abroad, check out the recent announcement about the new International Entrepreneur Parole program for founders.
It can make great business sense to sponsor international talent for a visa even if the position involves working remotely from a location inside the U.S. With the right legal setup, your team can work from home in Silicon Valley, nearby in California, or in another state where the cost of living is not quite as high. We’ve received this question from many employers, and many of our clients are proceeding with sponsoring international talent with visas and green cards for work-from-home positions.
I discussed this and other issues related to recruiting and work trends with Katie Lampert for my podcast. Lampert leads the talent acquisition and infrastructure group at General Catalyst, a VC firm that invests in seed to growth-stage startups in the U.S. and abroad. She advises companies in the General Catalyst portfolio on all things talent-related, including establishing company culture, creating a company’s infrastructure for recruiting and retaining talent, and planning for the future.
“Recruiting is going to be more global, which is exciting,” Lampert said during our discussion. “This will have a really positive effect on cultural diversity in the workforce. Studies show that a more diverse workforce leads to greater financial success.”
In fact, the latest McKinsey & Co. report on diversity, “Diversity wins: How inclusion matters,” found that companies with ethnically and culturally diverse executive teams are 36% more likely to achieve above-average profitability than companies with less diverse teams. McKinsey has issued three reports on diversity, and with each subsequent report, the business case for ethnic and cultural diversity and gender diversity in corporate leadership has grown stronger.
In addition to boosting profitability, bringing international talent to the United States to join your startup offers a host of other benefits as well.
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Dear Sophie: What type of visa should we get to fundraise in Silicon Valley?
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:
A friend and I founded a tech startup last year. Like a lot of other startups, we’re looking for funding. Should we come to Silicon Valley to meet with venture capitalists?
How should we begin that process? What type of visa should we get and how easy is it to get?
—Logical in Lagos
Dear Logical:
Thanks for reaching out to me from the entrepreneurial hotspot of Lagos!
In a recent episode of my podcast, I spoke with Esther Tricoche, director of investments at Kapor Capital, who offered up many words of wisdom to founders. She also mentioned that in many emerging entrepreneurial markets, including Lagos, accelerator funding and Series A funding are relatively easy to find, but pre-seed and seed funding are not.
Getting yourselves and your startup in front of Silicon Valley investors that focus on pre-seed and seed funding will be important to rapidly scale. Esther mentioned that even in U.S. cities, such as Atlanta, that are entrepreneurial hotspots, investment dollars are not as plentiful as they are in Silicon Valley. Moreover, investors outside of Silicon Valley tend to be more risk-averse.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
So, yes, you should meet with Silicon Valley investors, but be aware that most U.S. embassies and consulates remain closed to routine visa and green card processing due to the ongoing pandemic. Given that, you can start requesting virtual meetings now; and you will have to wait until the U.S. consulate in Lagos comes back to full capacity to apply for a visa to come to the U.S. I like checking for visa availability through the Waypoint Embassy and Consulate Directory (full disclosure: I am an advisor to Waypoint).
As always, I recommend that you consult an experienced immigration attorney when you’re ready to take the step of actually applying for a visa.
Once U.S. consular offices reopen, if you aren’t eligible for ESTA, you can apply for a B-1 visitor visa for business. With a B-1 visa, you can request an initial stay of up to six months. This is a great status for business meetings such as to talk to prospective investors, negotiate contracts and incorporate a new business. However, you can’t work in the U.S. You must be aware that no hands-on work for pay (or even the chance of future remuneration) by a U.S. entity is allowed.
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