immigration law
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Dear Sophie: Tips on EB-1A and EB-2 NIW?
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 on an H-1B living and working in the U.S. I want to apply for a green card on my own. I’m concerned about only relying on my current employer and I want to be able to easily change jobs or create a startup. I’ve been looking at the EB-1A and EB-2 NIW.
I’m not sure if I would qualify for an EB-1A, but since I was born in India, I face a much longer wait for an EB-2 NIW. Any tips on how to proceed?
— Inventive from India
Dear Inventive,
Thanks for your question. Take a listen to my podcast episode in which I discuss the latest tech immigration news and delve into the benefits and requirements of the EB-1A green card for individuals of extraordinary ability and the EB-2 NIW (National Interest Waiver) green card, which as you know are the main employment-based green cards for which individuals can self-sponsor.
I recommend you consult an experienced immigration attorney who can evaluate your abilities and accomplishments and assess your prospects for each green card. After an initial consultation with new clients, we’re able to provide a lot more detail to folks on their specific options since these are such individualized pathways.
There are some groups of people who might need every advantage. Those can include folks born in India or China, who might face long green card backlogs. Another such group includes people whose skills and accomplishments might be borderline for an EB-1A green card for extraordinary ability. In some cases — if eligible and to have every opportunity for green card security and to mitigate wait times as much as possible — our clients choose to file both the EB-1A and EB-2 NIW in parallel.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
The EB-1A is the highest priority green card and the standard for qualifying is much higher than for the EB-2 NIW. And that means an EB-1A is typically quicker to get, which is particularly the case now: According to the August 2021 Visa Bulletin, there is no wait for an EB-1A green card regardless of country of birth, while only individuals who were born in India and have a priority date of June 1, 2011 or earlier can proceed with their EB-2 NIW petition.
Please remember that the Visa Bulletin fluctuates and changes every month. Also, the EB-1A is currently eligible for premium processing on the I-140. Although there is talk to add this option to the EB-2 NIW one day, premium processing is not available for EB-2 NIW I-140s yet.
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Dear Sophie: Should we look to Canada to retain international talent?
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 handle people ops as a consultant at several different tech startups. Many have employees on OPT or STEM OPT who didn’t get selected in this year’s H-1B lottery.
The companies want to retain these individuals, but they’re running out of options. Some companies will try again in next year’s H-1B lottery, even though they face long odds, particularly if the H-1B lottery becomes a wage-based selection process next year.
Others are looking into O-1A visas, but find that many employees don’t yet have the experience to meet the qualifications. Should we look at Canada?
— Specialist in Silicon Valley
Dear Specialist,
That’s what we’re all about — finding creative immigration solutions to help U.S. employers attract and retain international talent and help international talent reach their dreams of living and working in the United States.
I’ve written a lot on how U.S. tech startups can keep their international team members in the United States. One strategy is to help the startup employees become qualified for O-1As. Another is to obtain unlimited H-1B visas without the lottery through nonprofit programs affiliated with universities. Sometimes candidates return to school for master’s degrees that offer a work option called CPT, or curricular practical training.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
But sometimes, companies end up deciding to move some of their international talent to Canada to work remotely. Recently, Marc Pavlopoulos and I discussed how to help U.S. employers and international talent on my podcast. Through his two companies, Syndesus and Path to Canada, Pavlopoulos helps both U.S. tech employers and international tech talent when their employees or they themselves run out of immigration options in the United States. He most often assists U.S. tech employers when their current or prospective employees are not selected in the H-1B lottery.
Through Syndesus, a Canada-based remote employer — also known as a professional employment organization (PEO) — Pavlopoulos helps U.S. employers retain international tech workers who either no longer have visa or green card options that will enable them to remain in the United States or those who were born in India and are fed up by the decades-long wait for a U.S. green card. U.S. employers that don’t have an office in Canada can relocate these workers to Canada with the help of Syndesus, which employs these tech workers on behalf of the U.S. company, sponsoring them for a Canadian Global Talent Stream work visa.
Syndesus also helps U.S. tech startups without a presence in Canada find Canadian tech workers and employ them on the startup’s behalf. As an employer of record, Syndesus handles payroll, HR, healthcare, stock options and any issues related to Canadian employment law.
Pavlopoulos’ other company, Path to Canada, currently focuses on connecting international engineers and other tech talent working in the U.S. — including those whose OPT or STEM OPT has run out — who cannot remain in the U.S. find employment in Canada, either at a Canadian company or at the Canadian office of a U.S. company. These employees get a Global Talent Stream work visa and eventually permanent residence in Canada. Pavlopoulos intends to expand Path to Canada to help tech talent from around the world live and work in Canada.
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Extra Crunch roundup: CEO Twitter etiquette, lifting click-through rates, edtech avalanche
Yesterday, China ordered ride-hailing company Didi to stop signing up new customers after regulators announced a cybersecurity review of the company’s operations.
As of this writing, Didi’s stock price is down 5.3%. In today’s edition of The Exchange, Alex Wilhelm suggested that the move wasn’t a complete surprise, but it still “puts a bad taste in our mouths,” since the company went public days ago.
Full Extra Crunch articles are only available to members.
Use discount code ECFriday to save 20% off a one- or two-year subscription.
When Didi filed to go public, it listed several potential pitfalls facing Chinese companies that go public in the U.S., including “numerous legal and regulatory risks” and “extensive government regulation and oversight in its F-1.”
What does this news signify for other Chinese companies that are hoping for stateside IPOs?
We’ll be off on Monday, July 5 in observance of Independence Day. Thanks very much for reading, and I hope you have an excellent weekend.
Walter Thompson
Senior Editor, TechCrunch
@yourprotagonist
3 guiding principles for CEOs who post on Twitter
Image Credits: NeONBRAND/Unsplash (opens in a new window)
Did you hear about the CEO who made misleading claims about a funding round and got sued? How about that pharmaceutical executive whose taunts to a former Secretary of State led to a 4.4% decline in the Nasdaq Biotechnology Index?
In case it isn’t clear: Startup executives are held to a higher standard when it comes to what they post on social media.
“Reputation and goodwill take a long time to build and are difficult to maintain, but it only takes one tweet to destroy it all,” says Lisa W. Liu, a senior partner at The Mitzel Group, a San Francisco-based law practice that serves many startups.
To help her clients (and Extra Crunch readers) Liu has six basic questions for tech execs with itchy Twitter fingers.
And if the answer to any of them is “I don’t know,” don’t post.
The 2021 edtech avalanche has just begun
Image Credits: Kari Shea/Unsplash (opens in a new window)
A report from Brighteye Ventures on Europe’s edtech scene shows that this year’s deal flow is on pace to meet or surpass 2020, when remote instruction exploded.
According to Brighteye’s head of Research, Rhys Spence, the average deal size is now $9.4 million, a threefold increase from last year. Still, “It’s interesting that we are not seeing enormous increases in deal count,” he noted.
How Robinhood’s explosive growth rate came to be
Image Credits: TechCrunch
Trading platform Robinhood has attracted enough users and activity to change the conversation around retail investing — economists will likely be discussing the 2021 GameStop saga for years to come.
After the company filed to go public yesterday, Alex Wilhelm sorted through Robinhood’s main income statement to better understand how it scaled year-ago revenue from $127.6 million to $522.2 million in Q1.
“Those are numbers that we frankly do not see often amongst companies going public,” says Alex. “300% growth is a pre-Series A metric, usually.”
So: where is all that revenue coming from?
As EU venture capital soars, will the region retain future IPOs?
Image Credits: Nigel Sussman (opens in a new window)
Given the valuation gap between U.S. tech markets and those overseas, it’s easy to see why some foreign startups would head to our shores when it’s time to go public.
But Anna Heim and Alex Wilhelm found that a record increase in European venture capital activity is picking up the pace of IPOs this year, and many of these companies are content to go public in their native markets.
To gain some insight into where European investors believe they have an advantage, Anna and Alex interviewed:
- Franck Sebag, partner, EY
- David Miranda, partner, Osborne Clarke Spain
- Yoram Wijngaarde, founder and CEO, Dealroom
How VCs can get the most out of co-investing alongside LPs
Image Credits: Diana Ilieva (opens in a new window) / Getty Images
In a recent private equity survey, 80% of respondents said their co-investments with people outside traditional VC firms outperformed their PE fund investments.
Alternative investors are highly motivated, and because they’re seeking higher returns than are generally available in public markets, they are less daunted by risk. In return, they benefit from less expensive fee structures and develop close ties with VCs, enlarging the talent pool as they build investment skills.
These relationships have direct benefits for VCs as well, such as more flexibility with diversification and consolidated decision-making power.
“With the right deal structure, deal selection and deal investigation, co-investors can significantly increase their returns,” says C5 Capital Managing Partner William Kilmer, who wrote an Extra Crunch post for VCs considering an alternative path.
Dear Sophie: How can I bring my parents and sister to the U.S.?
Image Credits: Bryce Durbin/TechCrunch
Dear Sophie,
My husband and I are both U.S. permanent residents.
Given what we’ve gone through this past year being isolated from loved ones during the pandemic, we’d like to bring my parents and my sister to the U.S. to be close to our family and help out with our children.
Is that possible?
— Symbiotic in Sunnyvale
How to cut through the promotional haze and select a digital building platform
Image Credits: Andreus (opens in a new window) / Getty Images
Smart-building products include everything from connecting landlords with tenants to managing construction sites.
Given their widespread impact on the enterprise — and the novel nature of much of this new technology, selecting the right digital building platform (DBP) is a challenge for most organizations.
Brian Turner, LEED-AP BD&C, has created a matrix intended to help decision-makers identify the fundamental functions and desired outcomes for stakeholders.
“When it comes to the built environment, creating those comfortable, healthy and enjoyable places requires new tools,” says Turner. “Selecting a solid DBP is one of the most important decisions to be made.”
Demand Curve: 7 ad types that increase click-through rates
Image Credits: Octavian Iolu / EyeEm (opens in a new window)/ Getty Images
One perennial problem inside startups: Because no one on the founding team has significant marketing experience, growth-related efforts are pro forma and generally unlikely to move the needle.
Everyone wants higher click-through rates, but creating ads that “stand out” is a risky strategy, especially when you don’t know what you’re doing. This guest post by Demand Curve offers seven strategies for boosting CTR that you can clone and deploy today inside your own startup.
Here’s one: If customers are talking about you online, reach out to ask if you can add a screenshot of their reviews to your advertising. Testimonials are a form of social proof that boost conversions, and they’re particularly effective when used in retargeting ads.
Earlier this week, we ran another post about optimizing email marketing for early-stage startups.
We’ll have more expert growth advice coming soon, so stay tuned.
To guard against data loss and misuse, the cybersecurity conversation must evolve
Image Credits: Jose Fontano/Unsplash (opens in a new window)
Locking down data centers and networks against intruders is just one aspect of an organization’s security responsibilities; cloud services, collaboration tools and APIs extend security perimeters even farther. What’s more, the systems created to prevent the misuse and mishandling of sensitive data often depend heavily on someone’s better angels.
According to Sid Trivedi, a partner at Foundation Capital, and seven-time CIO Mark Settle, IT managers need to replace existing DLP frameworks with a new one that centers on DMP — data misuse protection.
These solutions “will provide data assets with more sophisticated self-defense mechanisms instead of relying on the surveillance of traditional security perimeters,” and many startups are already competing in this space.
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Dear Sophie: What options would allow me to start something on my own?
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 on an H-1B in the U.S. for nearly two years. While I’m grateful to have made it through the H-1B lottery and to be working, I’m feeling unhappy and frustrated with my job.
I really want to start something of my own and work on my own terms in the United States. Are there any immigration options that would allow me to do that?
— Seeking Satisfaction
Dear Seeking,
Job dissatisfaction and frustration while on H-1B is normal, according to Edward Gorbis. He is the founder of Career Meets World and a performance coach who specifically works with immigrants and first-generation professionals to help them find fulfillment and thrive in their careers and life. I recently spoke with him for my podcast, “Immigration Law For Tech Startups.”
He says that “once immigrants reach stability, they start to think, ‘Who am I, what do I value, what’s my core identity?’” He partners with people to help them to gain a better understanding of why they think the way they do, teach them how our brain really works, and then reshape and retrain the brain for success.
Gorbis says that imagining overcoming the hurdles that stand in the way of doing the work that will fulfill you is the first step. So, here are some options that can help you imagine how to move toward building the life of your dreams.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Raise $250,000 and be the CEO
A great new option for aspiring entrepreneurs is International Entrepreneur Parole, a new immigration program in the United States that allows CEOs, CTOs and others to obtain a 2.5-year immigration status. You can live in the U.S. and run your company. Your spouse can work and you could be eligible for a 2.5-year extension.
How to qualify? You’ll need to own at least 10% of a U.S. company, such as a Delaware C corporation registered in California. Ideally, you’ll want to show that your company bank account has at least $250,000 raised from qualifying U.S. investors prior to applying, but you can demonstrate other evidence to show that your company has the potential to grow rapidly and create jobs in the U.S.
See yourself at another company
There is technically no limit on how many H-1B employers you can have or how many hours you work — or how few hours you work — in an H-1B position. So, think about other companies.
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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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In the race for tech talent, the US should look to Mexico
The global tech sector is booming, and as technologies like cloud and AI accelerate their growth, the demand for tech talent outpaces supply globally. Specifically, the U.S. tech sector has seen unprecedented growth in recent years, with four tech firms reaching a $1 trillion market cap by the beginning of 2020 — all of which have seen double-digit growth since achieving a 13-digit valuation pre-pandemic.
One of the major factors in the growth and adoption of tech in the U.S. is the increasing focus on software as a service and broader digital transformations across industry sectors, which have accelerated due to the COVID-19 pandemic. As such, there is an insatiable appetite for quality tech talent in the U.S., with projections showing an 11% increase by 2029 from 2019 numbers, which amounts to over half a million new jobs.
Given that the U.S. produces only about 65,000 computer science graduates, there is a vast deficit in the tech talent market, which materialized as over 900,000 unfilled IT and related positions in 2019 alone. The problem is so vast that more than 80% of U.S. employers stated that recruiting for tech talent is a top business challenge, according to a survey by top HR consulting firm Robert Half.
Demand increasing for Mexican tech talent
Mexico’s tech talent can help to fill the gaps left in a hypercompetitive U.S. market for tech workers. Unlike the U.S., 20% of Mexican college graduates have relevant engineering degrees, amounting to over 110,000 per year, far surpassing the U.S. in technical talent. Investors and tech firms have noticed and are increasing operations in Mexico.
20% of Mexican college graduates have relevant engineering degrees, amounting to over 110,000 per year, far surpassing the U.S. in technical talent.
Some have referred to the cities of Monterrey and Guadalajara as the “Silicon Valley of Latin America,” and while their tech sectors are also seeing tremendous growth, the pace falls short of Mexico’s talent production, leading to a surplus of highly trained and capable individuals in the tech sector. The cost of higher education in Mexico is far less than in the U.S., so we’re likely to see that talent surplus grow in the coming years.
Under current conditions, the U.S. has an incredible opportunity to capitalize on the surplus of tech talent in Mexico. Because tech jobs are more scarce than in the U.S., the cost of talent in Mexico is considerably less than in the U.S. or in Canada. In general, talent in Mexico can be two to three times cheaper than in the U.S. while still delivering outstanding quality and specialized experience.
More so than other Latin American countries, Mexico has the experience and economy to support a robust tech talent export ecosystem. In fact, Mexico City’s concentrated market is larger than the sum total of every other Spanish-speaking country in Latin America. Specifically, Mexico’s IT outsourcing industry has been growing at an annual rate of 10%-15% and is now considered the third-largest exporter of IT services.
What’s more, the U.S./Mexico relationship is seeing a refresh after several tumultuous years. With Mexico ranked No. 1 among U.S. trade partners, the political and economic mechanisms for investments and partnerships are in place. Technology leaders such as Cisco and Intel have already set up shop in Mexico, demonstrating confidence in the country’s ability to support tech and economic growth.
The benefits of proximity
Mexico provides a number of benefits that make drawing from its talent surplus easier and more efficient. For one, Mexico’s time zones align with those in the U.S., enabling real-time collaboration at times that work best for both parties. Compare this to the time difference in India, which is over 12 hours ahead of California’s Silicon Valley.
Beyond the time difference, there are also many cultural similarities that make working with Mexico the clear choice for IT outsourcing. For example, the U.S. is home to more than 41 million native Spanish speakers, and plus over 12 million bilingual Spanish speakers, making the U.S. the second-largest Spanish-speaking country after Mexico. While difficult to quantify, the number of consumer and cultural exports from Mexico to the U.S. also helps to build familiarity and solidarity between the two countries, which can only improve an already healthy relationship.
New geopolitical considerations favor U.S.-Mexico ties
The steady progression of America’s tech sector is now seen as a strategic priority at the federal level. Meanwhile, public and private sector decision-makers are more interested than ever in conducting business under favorable trade treaty terms with friendly governments amid a new climate of geopolitical uncertainty.
As the U.S. tech sector continues its explosive growth, technology companies in the U.S. will need to seek alternative means to supplement its in-demand tech workforce. Rather than turning to countries undergoing increased regulatory scrutiny, or distant talent bases requiring significant business travel, business leaders are looking to geographically close, diplomatically friendly nations. U.S. companies are finding Mexico’s status as a key business partner and strategic ally to be a massive value driver.
By 2030, the middle-class population in Mexico is expected to reach 95 million, placing it in the top 10 countries with the highest share of global middle-class consumption. As the middle class rises, so will companies to meet their consumer needs, and, as such, Mexico’s own tech sector will grow and require significantly more tech talent, reducing or potentially eliminating Mexico’s talent surplus.
This is evidenced by the uptick in Mexico-based technology companies, such as Mexican used-car startup Kavak, which recently hit a $4 billion valuation. Amid an exciting backdrop of skyrocketing tech valuations and potential, the U.S. tech sector should look to Mexico as a key growth market and technology partner. The time is now for the U.S. to tap into the surplus of quality tech talent in Mexico.
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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: When can I finally come to 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:
I’m a startup founder looking to expand in the U.S. I was originally looking at opening an office in Silicon Valley to be close to software engineers and investors, but then … COVID-19 🙂
A lot has changed over the last year — can I still come?
— Hopeful in Hungary
Dear Hopeful:
How and where work is getting done in Silicon Valley (as well as in much of the world) shifted during the COVID-19 pandemic. That said, yes, it can still make business sense for many to join the Silicon Valley ecosystem.
According to a recent report from PitchBook, Silicon Valley will continue to be the center for VC investment and high-tech talent, even though several large tech companies relocated out of Silicon Valley and implemented full-time work-from-home policies — and many predicted that “the Bay Area tech scene as we know it would be lost, and VC would find a new home.”
Clearly, while the pandemic’s impact on the venture industry will be felt in years to come, VC will continue to be centered in Silicon Valley. In a recent episode of my podcast, I discussed work trends and how to use immigration to support company priorities as well as attract and retain talent in the United States.
The PitchBook report points out that Silicon Valley “has kept a tight hold on fundraising in the U.S., closing on commitments exceeding $151 billion over the past five years, more than the rest of the U.S. ecosystems combined. LPs have continued to funnel capital to area VCs because of the region’s track record of success, which includes 17 of the 22 U.S. companies to ever receive a private valuation of $10 billion or more.”
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
So while VCs will likely return to the old ways of networking and funding post-pandemic, we’ll see a hybrid of online and in-person meetings because there are so many benefits to in-person networking and exchanging ideas.
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Dear Sophie: Can you demystify the H-1B process and E-3 premium processing?
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 is planning on registering an international student employee in this year’s H-1B lottery. This will be our first H-1B.
Can you help demystify the H-1B process and provide any tips? We also want to hire an Australian and transfer their E-3. How quickly can this be done?
— Plucky in Pleasanton
Dear Plucky:
Thanks for your timely questions! There’s some great news for Australian citizens currently in the U.S. and looking for job transfers, amendments and extensions. Premium processing is now available for the E-3 working visa category! This means that transfers, changes of status, and extensions of status for Australians in the U.S. seeking an E-3 can now obtain adjudications from USCIS in as little as 15 days, making it much easier to hire an Australian who is currently in the U.S. for a new role. Go for it!
On the topic of H-1Bs, the registration period for this year’s H-1B lottery will open at 9 a.m. PST on March 9 and will close at 9 a.m. on March 25. Startups need to make sure they’re registering anybody they want to sponsor during this window. Take a listen to my recent podcast on H-1B Lottery Planning, Part 1 and Part 2, for a general explanation of how this year’s process will work and how best to prepare.
Planning is key for implementing a successful immigration strategy. As always, I suggest you consult with an experienced immigration attorney ASAP to help get organized for registering your H-1B candidate for the March lottery and doing as much prep work as possible so that you can put together a strong H-1B petition in the event your candidate is selected in the lottery.
An attorney will also be up to date on all the recent changes to immigration policy, such as USCIS rescinding a Trump-era policy that went into effect in 2017 that effectively made computer programming positions ineligible for an H-1B visa. You will also want to discuss backup options for the international student employee if they are not selected in this year’s lottery.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Registration and lottery process
Recently, U.S. Citizenship and Immigration Services (USCIS) announced it will delay until next year the plan to shift from a random H-1B lottery to a wage-based one that would have selected registrants who would be paid the highest wage for their position and location. In January, the previous administration had finalized the rule implementing the wage-based lottery. The latest announcement ended weeks of speculation whether USCIS under the Biden administration would retain a wage-based H-1B allocation process, which falls in line with President Biden’s presidential campaign platform.
The random H-1B lottery in March means that H-1B candidates with the same education level who will be paid more will have no greater advantage than those being paid less. However, next year that may not be the case.
Regardless of whether there’s a random or wage-based lottery, individuals with a master’s or higher degree from a U.S. university will continue to have the best chance of being selected in the H-1B lottery. The annual cap on H-1Bs remains at 85,000 and of those, 20,000 H-1Bs are reserved for individuals with a master’s degree or higher from a U.S. university. USCIS randomly selects enough registered candidates from the entire pool of registrants to reach the 65,000 regular H-1B cap first. Then it randomly selects another 20,000 registered candidates holding a U.S. master’s degree or higher, in what is called the advanced-degree cap exemption. Therefore, individuals with a U.S. advanced degree have two chances to be selected. To be eligible, your international student employee must have earned their advanced degree from an eligible and accredited U.S. institution by the time the H-1B petition is filed.
After the online registration period closes on March 25, USCIS will conduct a random computerized selection of registrations and will notify those selected by March 31. A completed H-1B petition must be filed within 90 days of being notified that the H-1B candidate was selected in the lottery, which means the filing deadline will be June 30.
In order to register your candidate for the H-1B lottery, your company will need to set up an online USCIS account if it does not already have one. This can be done at any time between now and the end of the registration period. Your attorney can help you with this and the online registration process.
For the online registration process, your company will have to provide the following information:
- Full legal name of the candidate.
- Gender.
- Date of birth.
- Country of birth.
- Country of citizenship.
- Passport number.
- If the candidate is eligible for inclusion in the U.S. advanced-degree cap.
In addition, your company will have to pay the $10 registration fee, which can be submitted by entering a credit card, debit card, checking or savings account directly into the H-1B registration portal.
Tips for preparing
Generally, your startup and your H-1B candidate should start assembling documents you will need to submit. Your startup will need to get its tax identification number verified by the U.S. Department of Labor to prove that your startup is capable of sponsoring an individual for an H-1B. This needs to be done before your company can submit a Labor Condition Application (LCA), which is also sent to the Labor Department. An approved LCA must be submitted with your H-1B petition to USCIS. In addition to your startup’s tax ID, it will need the following:
- If your startup formed recently, articles of incorporation, pitch deck, business plan, term sheet, cap tables.
- Documentation showing your company can pay the prevailing wage for the H-1B candidate’s position and location: bank statements, tax returns, other financial documents.
- Documents to prove your company is operating within the normal course of business, including marketing materials, company reports, screenshots of the company website.
- Job offer letter to the H-1B candidate, including job title, detailed duties, benefits, salary and start date.
- Minimum requirements for the position.
Your H-1B candidate will need:
- An up-to-date resume.
- Originals of diplomas, certificates, and transcripts (also scanned copies).
- Past immigration documents, such as Form I-20 (certificate of eligibility for F-1 student status) or Form DS-2019 (certificate of eligibility for J-1 status.
- Translations of any documents not in English along with a certified translation document.
For tips for filing the H-1B petition, listen to my podcast episodes on “Your Startup’s First H-1B” and “What Makes a Strong H-1B Petition.” Your attorney will be able to make the case that your H-1B candidate and the position your startup is offering meet the requirements of the H-1B specialty occupation visa.
As of now, premium processing for H-1B petitions remains available. Currently, USCIS is severely backlogged in all case types, so I often suggest using it, depending on the H-1B candidate’s start date and current geographic location. With premium processing, which is an optional service for a $2,500 fee, USCIS guarantees it will make a decision on a case within 15 days. If USCIS approves your H-1B petition, the earliest the international student employee can begin working under the H-1B visa is Oct. 1, 2022, which is the first day of the federal government’s new fiscal year.
Fingers crossed for you in this year’s H-1B lottery
All the best,
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!
TC Early Stage: The premier how-to event for startup entrepreneurs and investors
From April 1-2, some of the most successful founders and VCs will explain how they build their businesses, raise money and manage their portfolios.
At TC Early Stage, we’ll cover topics like recruiting, sales, legal, PR, marketing and brand building. Each session includes ample time for audience questions and discussion.
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