H-1B visa
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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: Can I transfer my H-1B to a startup I founded?
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 working for a large tech company on an H-1B visa for about a year and a half. I’d like to establish my own company while maintaining my current, secure job.
Can I keep working on the H-1B, found my own company, and then have my startup sponsor me for an H-1B or another visa?
— Scrappy in Santa Clara
Hi Scrappy,
You need to be very careful while navigating this process because there are many different legal requirements that you need to pay careful attention to so you comply with U.S. immigration laws. But yes, it is possible for you to own a portion of a business on H-1B, and it is possible for a founder to obtain an H-1B transfer to work at the startup.
Take a listen to a recent podcast episode in which I discuss having two H-1B jobs — or concurrent H-1Bs. Concurrent H-1Bs enable your second employer — in this case, your startup — to avoid having to go through the H-1B lottery process because you have already gone through that process with your current employer.
Consult with experienced attorneys
Be kind to your attorneys — you will need their support to navigate this process! Before you embark on creating your startup, you should review and discuss your employment contract and NDA with an employment lawyer.
Big companies often require employees to obtain their consent prior to forming a startup. You should also consult with an experienced immigration attorney when considering embarking on this path and determining how to structure your startup. The H-1B has specific requirements that you and your startup must meet to qualify.
Employer-employee requirement
As you probably already know, the H-1B visa allows you to work for a specific employer in a specific job at a specific location. That means you cannot work for or at your startup under your current H-1B. Therefore, we often advise clients not to found any startup as a sole proprietorship. There will probably need to be a corporation or a limited liability company.
You may be advised to find a co-founder or two. One of the key requirements for the H-1B that you need to keep in mind is your startup and you must have an employer-employee relationship. That means someone at your startup, such as a co-founder, must have the ability to hire you, supervise you, hold you accountable for poor job performance, and fire you, according to the terms and conditions of the H-1B.
Also, you may need to work with a corporate attorney to draft certain bylaws, and it can be helpful if you personally own less than 50% of your startup. All of these things depend on the specific details of your situation, so definitely talk to experienced attorneys to guide you through, step by step!
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Salary requirement
Your position and your startup must meet other requirements for an H-1B. To qualify for an H-1B, the future position must meet the definition of a “specialty occupation.” That means your position requires theoretical and practical application of highly specialized knowledge.
It also means you must have at least a bachelor’s degree or equivalent experience in a field that’s directly related to the position.
Moreover, your startup must be able to pay you the prevailing wage for the position and for the location where your startup or the position is based. Prevailing wages, which are determined by the U.S. Department of Labor, are broken down into four levels based on experience, with Level I being an entry-level position and Level IV being the most experienced.
Before filing an H-1B petition on your behalf to U.S. Citizenship and Immigration Services (USCIS), your startup’s immigration attorney will have to first submit a Labor Condition Application (LCA) for certification by the Department of Labor. An LCA seeks to ensure that the wages and working conditions of American workers are not negatively impacted by an H-1B position.
Equity in a company and stock options are not considered wages in the H-1B context. Therefore, your startup will need to show that it can afford to pay you the prevailing wage as well as support business operations.
If you’re pre-revenue, this can be shown by a business plan plus your bank statements showing your runway from an initial investment. The amounts required depend on the details of your company’s situation.
Other things to keep in mind
There are no restrictions on the number of hours an individual on an H-1B must work. An H-1B position can be full time or part time or involve working just a few hours a week. Take a listen to my podcast on best practices for submitting a strong H-1B petition.
Concurrent H-1B employment can last as long as the original H-1B with your large tech employer. If you want to remain permanently in the United States, you or one of the companies sponsoring your H-1B should apply for a green card at least a year before your sixth year on the H-1B. (If you apply for a green card before your sixth year on an H-1B, the sponsoring employer can continue to extend your H-1B beyond six years until you receive your green card so you don’t have to leave the United States to apply at a U.S. embassy in your home country).
If you want to apply for a green card on your own, consider the EB-1A green card for individuals with extraordinary ability or the EB-2 NIW (National Interest Waiver) for individuals with exceptional ability.
Other employment-based green cards, such as the EB-2 green card for professionals holding advanced degrees and EB-3 for skilled workers and professionals, require an employer to sponsor you as well as the PERM process, which can be challenging if you own substantial equity in the company.
Check with your current employer to find out if the company is willing to sponsor you for a green card. Depending on the timing, you might be able to bypass a second H-1B completely, avoiding the employer-employee relationship restrictions with your startup venture.
The work permit that comes in the I-485 adjustment of status process is unrestricted as to the type of employment in which you can engage!
Wishing you the best on your journey,
Sophie
Have a question for Sophie? 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. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!
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Dear Sophie: What are the pros and cons of the H-1B, O-1A and 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.”
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’m an entrepreneur who wants to expand my startup to the U.S. What are the benefits and drawbacks of various types of visas and green cards?
The ones I’ve heard the most about are the H-1B, O-1 and EB-1A.
— Intelligent in India
Dear Intelligent:
I’m happy to hear you’re considering the O-1A extraordinary ability visa and the EB-1A extraordinary green card! Individuals often assume they need to have won a Nobel Prize or some other major award or be well known in their field to qualify for either the O-1A or the EB-1A — and that’s simply not the case.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
“Particularly for folks from Asia, being a self-promoter is massively looked down upon. Humility is important,” says Navroop Sahdev, a pioneering economist and blockchain expert I recently interviewed for my podcast. Sahdev is founder and CEO of The Digital Economist, a Connection Science Fellow at Massachusetts Institute of Technology and a partner at NextGen Venture Partners.
She spoke with me about her immigration journey to the United States, which included two H-1B visas, an O-1A visa and an EB-1A green card.
Here are the pros and cons of each visa and green card that you listed.
H-1B visa
Overall, the requirements for the H-1B specialty occupation visa are not as stringent as those for the O-1A visa and the EB-1A green card, which is why many employers sponsor international students who are on an F-1 visa and recently graduated or on OPT (Optional Practical Training) or STEM OPT for an H-1B.
Because demand for the H-1B far exceeds the annual supply of 85,000, U.S. Citizenship and Immigration Services (USCIS) holds a random lottery to determine who can apply for an H-1B. (That random lottery is slated to switch to a wage-based selection process next year.)
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Dear Sophie: Would a Trump win abolish the H-1B visa lottery?
Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.
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 heard the randomness of the H-1B lottery is going away. What will this mean for our startup’s ability to get an H-1B visa for one of our co-founders?
— Curious in Cupertino
Dear Curious:
Lots going on in immigration this week (as usual!). First, good news for green card applicants: the November 2020 Visa Bulletin did not change from October, when the dates for filing for Adjustment of Status sped up significantly for individuals born in India and China.
About the H-1B lottery: The Department of Homeland Security (DHS), which oversees U.S. Citizenship and Immigration Services (USCIS), this week proposed a rule that ends the random H-1B lottery; instead, USCIS will determine who can apply for an H-1B visa based on the highest salary. DHS says this change will “incentivize employers to offer higher wages.”
The number of H-1B visas issued each year is capped at 85,000. Currently, when demand for H-1Bs outstrips the annual supply, which has been the case since 2013, USCIS uses an electronic random lottery to determine who can apply for an H-1B. For the first time this year, sponsoring companies electronically registered each H-1B candidate for the lottery in March.
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Dear Sophie: Any upgrade options for E-2 visa holders interested in changing jobs?
Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.
Here’s another edition of “Dear Sophie,” the advice column from a practicing attorney that answers immigration 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’m currently here in the U.S. on an E-2 visa.
My employer, a company based in Slovakia, moved me to the U.S. to help establish our U.S. operations. What are my options if I want to look for other job opportunities here in the U.S. with a different company? Is there a feasible process to upgrade my E-2 visa to another type, like an L? Thank you!
—Restless in Redwood City
Dear Restless,
Thanks for your questions. Nonimmigrant (temporary) visas that allow you to work in the U.S. require an employer to sponsor you for the visa, and those visas remain tied to the employer sponsor and the position for which you were hired. We recently launched the Extraordinary Ability Bootcamp (promo code DEARSOPHIE for 20% off enrollment) — this is a class that can help you strengthen your credentials if you end up pursuing an O-1A visa, which I’ll discuss more about below.
There are a few visa options available if you find a U.S. company willing to sponsor you such as J-1, O-1A and H-1B, and various green card pathways. You had asked about an L Visa, but this would only be an option if you had worked for the new company abroad for at least one year during the past three years. Both the L-1A visa and the L-1B visa enable multinational companies to transfer a manager, executive or specialized knowledge employee from an office abroad to a U.S. office — or to open an office in the U.S. — from an office abroad. The L-1A visa for intracompany executive or manager transferees is similar to the E-2 visa in that both allow the visa holder to come to the U.S. to set up a new office for the sponsoring company.
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Trump’s latest immigration restrictions are bad news for American workers
Jay Srinivasan is co-founder and CEO of atSpoke.
I’m an immigrant, and since arriving from India two decades ago I’ve earned a Ph.D., launched two companies, created almost 100 jobs, sold a business to Google and generated a 10x-plus return for my investors.
I’m grateful to have had the chance to live the American dream, becoming a proud American citizen and creating prosperity for others along the way. But here’s the rub: I’m exactly the kind of person that President Trump’s added immigration restrictions that require U.S. companies to offer jobs to U.S. citizens first and narrowing the list of qualifications to make one eligible for the H-1B visa, is designed to keep out of the country.
In tightening the qualifications for H-1B admittances, along with the L visas used by multinationals and the J visas used by some students, the Trump administration is closing the door to economic growth. Study after study shows that the H-1B skilled-worker program creates jobs and drives up earnings for American college grads. In fact, economists say that if we increased H-1B admittances, instead of suspending them, we’d create 1.3 million new jobs and boost GDP by $158 billion by 2045.
Barring people like me will create short-term chaos for tech companies already struggling to hire the people they need. That will slow growth, stifle innovation and reduce job creation. But the lasting impact could be even worse. By making America less welcoming, President Trump’s order will take a toll on American businesses’ ability to attract and retain the world’s brightest young people.
Consider my story. I came to the United States after earning a degree in electrical engineering from the Indian Institute of Technology (IIT), a technical university known as the MIT of India. The year I entered, several hundred thousand people applied for just 10,000 spots, making IIT significantly more selective than the real MIT. Four years later, I graduated and, along with many of the other top performers in my cohort, decided to continue my studies in America.
Back then, it was simply a given that bright young Indians would travel to America to continue their education and seek their fortune. Many of us saw the United States as the pinnacle of technological innovation, and also as a true meritocracy — somewhere that gave immigrants a fair shake, rewarded hard work and let talented young people build a future for themselves.
I was accepted by 10 different colleges, and chose to do a Ph.D. at the University of Illinois because of its top-ranked computer science program. As a grad student, I developed new ways of keeping computer chips from overheating that are now used in server farms all over the world. Later, I put in a stint at McKinsey before launching my own tech startup, an app-testing platform called Appurify, which Google bought and integrated into their Cloud offerings.
I spent a couple of years at Google, but missed building things from scratch, so in 2016 I launched atSpoke, an AI-powered ticketing platform that streamlines IT and HR support. We’ve raised $28 million, hired 60 employees and helped companies including Cloudera, DraftKings and Mapbox create more efficient workplaces and manage the transition to remote working.
Stories like mine aren’t unusual. Moving to a new country takes optimism, ambition and tolerance for risk — all factors that drive many immigrants to start businesses of their own. Immigrants found businesses at twice the rate of the native born, starting about 30% of all new businesses in 2016 and more than half of the country’s billion-dollar unicorn startups. Many now-iconic American brands, including Procter & Gamble, AT&T, Google, Apple, and even Bank of America, were founded by immigrants or their children.
We take it for granted that America is the destination of choice for talented young people, especially those with vital technical skills. But nothing lasts forever. Since I arrived two decades ago, India’s tech scene has blossomed, making it far easier for kids to find opportunities without leaving the country. China, Canada, Australia and Europe are also competing for global talent by making it easier for young immigrants to bring their talent and skills, often including an American education, to join their workforces or start new businesses.
To shutter employment-based visa programs, even temporarily, is to shut out the innovation and entrepreneurialism our economy desperately needs. Worse still, though, doing so makes it harder for the world’s best and brightest young people to believe in the American dream and drives many to seek opportunities elsewhere. The true legacy of Trump’s executive order is that it will be far harder for American businesses to compete for global talent in years to come — and that will ultimately hamper job creation, slow our economy and hurt American workers.
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Dear Sophie: I came on a B-1 visa, then COVID-19 happened. How can I stay?
Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.
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’m currently in the U.S. on a business visitor visa. I arrived here in early March just before the COVID-19 pandemic began here to scope out the U.S. market for expanding the startup I co-founded in Bolivia a few years ago.
I had only planned to stay a couple months, but got stuck. Now my company has some real opportunities to expand. How can I stay and start working?
— Satisfied in San Jose
Hey, Satisfied!
Appreciative for the jobs you’ll be creating in the U.S. since you desire to remain in the U.S. and expand your startup. The U.S. economy greatly benefits from entrepreneurs like you who come here to innovate. Since you’re already in the U.S., you may have options to change your status without departing.
If you were granted a stay of six months when you were admitted most recently with your B-1 visitor visa, you can seek an extension of status for another six months. There are additional alternatives we can explore that would allow you work authorization. For more details on some of the options I’ll discuss here and for additional visa and green card options for startup founders, check out my podcast on “What is U.S. Startup Founder Immigration? A Step-By-Step Guide for Beginners.”
Because most green cards (immigrant visas) take longer than nonimmigrant (temporary) visas, a conservative strategy to pursue would be to find another temporary nonimmigrant status (what is often nicknamed a “visa”) — rather than a green card, which takes longer — that will allow you to create and grow your startup in the U.S. without having to return to Bolivia.
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Dear Sophie: How can employers hire & comply with all this new H-1B craziness?
Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.
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?
Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.
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
|
Pros
|
Cons
|
Cons
|
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: 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.”
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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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