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Dear Sophie: Banging my head against the wall understanding the US immigration system
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:
Now that the U.S. has a new president coming in whose policies are more welcoming to immigrants, I am considering coming to the U.S. to expand my company after COVID-19. However, I’m struggling with the morass of information online that has bits and pieces of visa types and processes.
Can you please share an overview of the U.S. immigration system and how it works so I can get the big picture and understand what I’m navigating?
— Resilient in Romania
Dear Resilient:
We welcome you to the U.S.! Our country greatly benefits from international entrepreneurs like you who expand here to innovate, create jobs and bolster the global economy.
I followed in my father’s footsteps to become an immigration attorney to fulfill my personal mission of helping people live the life of their dreams in the United States. A big part of making that happen is to give individuals the information and the tools they need to clearly set their immigration goals and to reach them quickly.
Check out my recent podcast where I provide a brief, high-level overview of the U.S. immigration system. The United States is a nation founded by immigrants. The immigration system is based on many of the same values and principles enshrined in our Constitution.
In 1965, the U.S. Congress passed the Immigration and Nationality Act, the foundation of all of our immigration laws today. Although some amendments to the act have been made over more than 50 years since then, the immigration system still operates under the same framework created back then. One of the things I appreciate about this framework is that there are so many legal routes to immigrate to the U.S. that are available.
There are many visa and green card categories you can use to chart your course. As a creative lawyer with plenty of lead time before somebody moves to the U.S., it provides many options to work with. Law doesn’t just place restrictions on people; it can be used as a tool for creation.
So, even though the system has its challenges and can be greatly improved, successfully navigating the system is doable. Everyone from individuals to founders, CEOs at startups and HR and Global Mobility at giant companies, families and couples in love — you just need to know the right questions to ask and the information to empower you to find the right immigration path.
My father used to always say there are five main areas of immigration law:
- Business immigration
- Family immigration
- Asylum
- Appeals
- Removal and deportation
I have worked on cases in each of these areas, but my firm focuses primarily on business and family immigration. Business immigration encompasses both visas and green cards, whereas family immigration only involves green cards that are based on an individual’s relationship to a U.S. citizen or permanent resident (green card holders), including fiance visa and different pathways to green cards.
At a high level, the U.S. offers two types of visas: nonimmigrant visas and immigrant visas. Immigrant visas are also called green cards.
Nonimmigrant visas allow for a temporary stay in the U.S. Each nonimmigrant visa that allows its holder to work in the U.S. requires an employer to sponsor the individual and hire them after approval and arrival. Each nonimmigrant is designed to allow an individual with certain skills, education or expertise that will benefit the employer, the employer’s industry or the U.S in general, such as a multinational executive (L-1) an individual in a specialty occupation (H-1B) or with extraordinary ability (O-1).
Some nonimmigrant visas are based on the candidate’s home country or whether the individual’s home country has a trade agreement with the U.S. Each work visa has different requirements for renewals. I discuss these and other startup-friendly visas and green cards in more detail in a podcast on the most startup-friendly visas and green cards.
A green card allows its holder to live and work permanently in the U.S. and is the first step to obtaining U.S. citizenship. Some nonimmigrant visas lead directly to a green card. However, many do not. So it’s important to be creative and strategic from the beginning of your U.S. immigration journey.
Most employment-based green cards require an employer sponsor. The two exceptions are the EB-1A green card for extraordinary ability and the EB-2 NIW (National Interest Waiver) for exceptional ability. Individuals can apply for these green cards on their own without an employer sponsor or job offer. We cover both of these green cards, as well as the O-1 nonimmigrant visa in Extraordinary Ability Bootcamp, an online course that takes a deep dive into the O-1A nonimmigrant visa, and the EB-1A and EB-2 NIW green cards, for which you may be eligible to apply.
Most international founders and entrepreneurs typically qualify for an E-2, L-1 or O-1 visa, or an EB-1A, EB-1C or EB-2 NIW green card. Take a look at the immigration options chart we created that outlines the most common visa and green card categories that apply to founders, investors and talent.
In addition to the various visa and green card options, you should know that you can apply for a visa or green card while living outside the U.S. or while living inside the U.S. Living outside the U.S., you can apply for a visa or green card at a U.S. embassy or consulate, which is called consular processing. Once living in the U.S., you can apply for change of status to another visa or adjustment of status to a green card. For more information about specific visas and green cards and how to navigate the U.S. immigration system, check out my weekly podcast.
Even during COVID, I’m confident you’ll find your way to the U.S. to begin your journey of expanding your company. I wish you good health and much success in 2021!
Best regards,
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: Tips for getting a National Interest green card by myself?
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 working in the Bay Area on an H-1B visa and my employer won’t sponsor my green card.
I really want permanent residence, but I never won a Nobel prize; I’m single; and I don’t have a million dollars yet. However, I think I might qualify for an EB-2 NIW green card.
What can you share?
— National in Napa
Dear National:
Wonderful that you’re taking matters into your own hands! This is a complicated process, so the most important advice I can give you is to retain an experienced business immigration attorney to represent you and prepare and file your green card case.
For additional do’s and don’ts in U.S. immigration, please check out the recent podcast that my law firm partner, Anita Koumriqian, and I posted on the commandments of immigration (and especially what to not do when it comes to visas and green cards).
This particular episode focuses on family-based green cards, but these recommendations are timeless and apply to individuals who are self-petitioning for employment-based green cards, such as the EB-2 NIW (National Interest Waiver) for exceptional ability and the EB-1A for extraordinary ability. Our top recommendation in that podcast episode is to avoid DIY immigration, so definitely retain legal counsel!
Filing for an EB-2 NIW or any green card requires more than just filling out the appropriate forms. The process needs to be understood, as the law and legal requirements, and the analysis of whether and how you can best qualify is complicated.
With any immigration matter, one needs to have the resources to fully understand the process, the steps for applying, and the timing and deadlines. We want to always make sure that you always maintain legal status (never falling out of status) so that you can remain in the U.S. (and don’t have to leave).
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Dear Sophie: What’s ahead for US immigration in 2021?
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 in people ops and our team is trying to plan ahead for immigration in the new year and beyond.
What’s ahead for U.S. visas and green cards?
—Ready in Redwood City
Dear Ready:
Ha! I love it. Well, although I don’t have a crystal ball (yet), there’s a lot of opportunity, predictability and security that we can anticipate for immigration ahead.
Our U.S. immigration policy will experience a tremendous growth spurt in the coming months as Trump completes his regulatory agenda, litigation culminates and Biden takes office on January 20. The changes I’m tracking will incentivize U.S. companies to hire and retain top global talent and will make it easier for them to do so. There are also going to be increased opportunities for families and founders, strengthening the U.S. and Silicon Valley tech startup communities.
We can anticipate that the first 100 days of President-elect Biden’s term will focus on undoing many Trump-era immigration changes. Some of this will happen by executive order (although probably not tweets!) and some of it will be required to follow the procedures set forth in law through the Administrative Procedure Act (APA). The APA governs the process by which federal agencies develop and issue regulations.
Following procedures to rescind or amend rules already put into place — even on an expedited basis — takes time to allow for adequate review and public comments. We can anticipate that due process will unfold to effectuate these changes.
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Dear Sophie: How did immigration change for startup founders in 2020?
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 F1 OPT and am about to incorporate a startup with my two American co-founders. What were the biggest immigration changes in 2020 affecting us?
—Ambitious in Albany
Dear Ambitious:
Congrats on creating your startup. The Electoral College has voted and Biden is scheduled to take office on January 20, 2021. It may take him a few months to undo many of the Trump immigration changes, so there are several things for you to consider.
2020 gave many of us whiplash with all the things that happened! We braced for the worst in April after President Trump tweeted that he would suspend immigration to the U.S. In the end, the executive proclamations he issued in April and June fell far short of that and immigration remains possible.
However, these bans remain in effect until at least the end of 2020. The proclamations placed moratoriums on the issuance of green cards by the U.S. Embassies and consulates abroad, as well as H-1B, H-2B, J-1 and L-1 work visas. The Department of State has expanded the list of exceptions to these bans so many people now qualify.
One of the current constraints affecting the most people is that many embassies and consulates remain closed or are operating at significantly reduced capacity. Given that, we are recommending to our clients who are already in the U.S. to avoid leaving by seeking Extensions of Status, Changes of Status and Adjustments of Status with USCIS stateside.
The H-1B may be another promising visa option for your future as a founder. There are two ways to do it: “cap-subject” (the annual spring lottery) and “cap-exempt” (anytime of year). At a minimum, it’s easy for your startup to register you for the upcoming H-1B lottery in March 2021. It only costs $10 to register an H-1B candidate. If you’re selected, your startup could file an H-1B petition on your behalf. If you are not selected, your startup can register you again in 2022.
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Conflicts in California’s trade secret laws on customer lists create uncertainty
When salespeople in California’s dynamic tech economy transition between jobs, the value they bring to their new company is often their customer relationships. Startup founders and salespeople considering joining competitors often assume continuing to maintain these customer relationships is noncontroversial given California’s well-known policy favoring employment mobility and outlawing non-competition agreements.
Yet California trade secret law regarding the ability of salespeople to solicit these customers once they jump to a competitor is increasingly confused and fails to provide meaningful guidance on what type of conduct is permissible. Thus, a salesperson’s move from their current company to a competitor is risky given it is unclear whether and to what extent they can continue servicing clients or contacts they previously worked with.
A salesperson working for a value-added reseller (VAR), for instance, should understand what they are getting into before moving to a competitor — they may risk longstanding relationships with original equipment manufacturers (OEMs) and end users. This article explains the conflicting law on this issue so that salespeople planning on jumping ship, and the companies considering hiring them, can be informed regarding the current legal landscape.
California law invalidates non-competition agreements
In the vast majority of states, employers can, and do, require employees to enter into some form of non-competition agreement in exchange for continued employment.1 In contrast, California has a long-standing policy of favoring employment mobility over an employer’s concerns. California’s policy is embodied in Business and Professions Code section 16600, which provides: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
California courts “have consistently affirmed that section 16600 evinces a settled legislative policy in favor of open competition and employee mobility” that is intended to “ensure that every citizen shall retain the right to pursue any lawful employment and enterprise of their choice.”2 The policy also allows California employers to “compete effectively for the most talented, skilled employees in their industries, wherever they may reside.”3 Accordingly, unlike in most states, the “interests of the employee in [their] own mobility and betterment” generally outweigh the “competitive business interests of the employers.”4
Courts have broadly applied section 16600, invalidating non-competition agreements, which would prohibit or restrict an employee from leaving to work for a competitor.5 Importantly, courts have also invalidated contractual provisions purporting to restrict an employee’s ability to leave and then solicit the company’s customers.6 In other words, a salesperson cannot be contractually precluded from leaving their company, joining a competitor and continuing to solicit, service and communicate with their former company’s clients. Furthermore, with limited exceptions, California courts will disregard a “choice of law” provision purporting to mandate that the court follow the law from a state that enforces noncompetes.7
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Dear Sophie: What does Biden’s win mean for tech immigration?
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:
What does President-elect Biden’s victory mean for U.S. immigration and immigration reform?
I’m in tech in SF and have a lot of friends who are immigrant founders, along with many international teammates at my tech company. What can we look forward to?
—Anticipation in Albany
Dear Anticipation,
Glimpsing into my crystal ball, I see opportunity ahead. President-elect Biden and Vice President-elect Harris have long stood committed to important immigration changes that will directly affect the Silicon Valley tech ecosystem.
Dream with ambition, lead with conviction, and see yourself in a way that others might not see you, simply because they’ve never seen it before.
— Kamala Harris
We’re appreciative of what’s to come. As my firm’s mission is to transcend borders, expand opportunity and connect the world by practicing compassionate, visionary and expert immigration law in service of the betterment of humanity, we’re looking forward to a deluge of immigration changes that will support our clients as well as innovation and entrepreneurship in Silicon Valley and beyond. Please join me tomorrow for a free webinar as we take a look at what’s ahead for U.S. immigration in 2020, what these important developments mean for Silicon Valley, for startup founder immigration, and for recruiting, hiring and retaining top talent.
I’m confident we’ll see meaningful changes in immigration for startups, founders, investors, researchers, highly skilled professionals, students, Dreamers and families under the Biden administration. Check out my Immigration Law for Tech Startups podcast for my take on some of the highlights. Of top priority, Biden and Harris plan to unravel recent executive orders and regulations, modernize our immigration system, and perhaps most importantly, welcome immigrants.
President-elect Biden’s six-point plan for building a fair and humane immigration system includes promises to:
- Rescind Trump immigration policies, regulations and executive orders.
- Modernize the immigration system.
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Dear Sophie: How will this election nail-biter affect immigration?
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:
The last 24 hours have been a nail-biter; I feel powerless and I’m angry that we’ve come to this. I’m worried things won’t improve and I’m confused about where we even stand.
Sometimes I just feel so very, very tired of the struggle. I am just so ready to let go. I want to live in a world where we can create harmony, peace and opportunity for all. Can I still find that in the United States?
— Wanting in Walnut Creek
Dear Wanting,
I hear you.
The good news is that there is great potential, even as the world watches the U.S. presidential election results. If anything, what the last four years have taught me is that two clichés are really true: necessity is the mother of invention, and, where there is a will, there is a way. I can relate to many folks around the world because I know what it’s like to have the world of Silicon Valley feel so close, yet so far away, at a time when I felt powerless to make a difference.
Looking back over the past four years, amazing things have been possible for our clients and my team at Alcorn Immigration Law. I founded the firm out of my kitchen just years ago when my kids were toddlers. I would look out my kitchen window hand-washing tiny baby dishes. I can still remember the feeling of the suds on my fingers as I gazed longingly at the tall building on Castro Street in downtown Mountain View where 500 Startups used to sit on the top floor. YC was just down the street.
I felt so powerless. I desperately wanted to make the world a better place, and reaching the world of Silicon Valley, even though it was just past my backyard, seemed like getting to Mars.
From those humble beginnings to now, as I founded and bootstrapped Alcorn Immigration Law on my own journey of becoming a single mom, I know what’s possible, even during the last four years of the Trump administration. We’ve had amazing success — claiming thousands of victories in supporting companies, people and families to live and work legally in the United States. If I was able to grow my firm during the last four years, I know that it’s possible for anybody to follow their heart and succeed. It’s our human essence to long to be a creator in this world, and anybody can and deserves to make a difference.
And here is what else I know: immigration law is created by acts of Congress and signed into law by the president. Mere tweets may be intended to try to bend the rules, but they cannot break them. That is what democracy is about.
In democracy, we have agreed to abide by basic laws, such as the inviolable dignity of the human being and that we want to agree on procedures for how we make decisions, like the process of passing a law about immigration. Democracy is not about majority tyranny. Democracy is about the fact that we uphold a few principles and we agreed on a decision-making process. When Trump ignores our basic laws and he ignores our legal processes, democracy is in peril.
But democracy does not need to be disrupted, it only requires small adjustments to thrive. In any group it is possible to make jointly supported decisions, taking the needs and resources of all into consideration. “Although the world is complex and decision making is complex, the components of decision making are simple,” according to Richard Graf, founder of K-i-E. Simple tools like the DecisionMaker can allow a miracle to happen — in an environment of openness and anonymity, we can all safely share our needs and concerns so that proposals can be formed based on collective best practices, knowledge, experience, intelligence and intuition. Even if it’s a complex situation, the way forward can immediately become clear.
And in our democracy, the paths to live and work in the U.S. will always remain viable, even if we need to remove a branch or navigate around a new boulder. Here at Alcorn, despite the furor and fear-mongering present in the world surrounding immigration, we are continually securing real victories for our clients. Not a client yet? Global founders can still create a startup, pitch it to investors and secure pathways to live and work legally in the United States with visas, green cards and citizenship.
So I know this and will repeat: Whatever the election results, there will still be many ways for people to legally navigate the U.S. immigration process and access the opportunity and security of life here. For more insight on these ways, please join my Election Results Webinar next week.
In the meantime, here are my thoughts on how the election results will affect the future of U.S. immigration:
Looking ahead, if Biden takes the victory, he has pledged to undo all Trump-era immigration regulations in the first 100 days and support comprehensive immigration reform. He promised to promote immigrant entrepreneurship, which could finally mean a startup visa! He also wants to speed up naturalization, rescind the Muslim travel bans, pass legislation to expand the number of H-1Bs, increase the amount of employment-based green cards, exempt international STEM PhD graduates from needing to await a priority date, create a new type of green card to promote regional economic development and support immigrant entrepreneur incubators.
Alternatively, we can expect that a Trump administration would continue restricting immigration, leading to litigation and judges deciding the fate of many recent policies. We can foresee a continued COVID freeze on green card interviews at consulates.
Also, DHS recently announced its intent to remove the randomness from the H-1B lottery and prioritize the annual H-1B selection process from highest to lowest wage starting in spring 2021. I’m sure there will be litigation about this; in the meantime, Alcorn Immigration Law continues to recommend that all employers proceed with registering employees and candidates in the lottery as usual. These details will take time to shake out and we don’t want anybody to lose a chance at being selected.
In other updates, immigration is just continuing along and there is actually some great news for folks: The State Department recently released the November Visa Bulletin and it stayed the same from October. (If you think your priority date is current or may be current soon, please contact your attorney as soon as possible to discuss filing your I-485 this month to avoid the possibility of retrogression in December!)
And if you need the freedom to build your startup, but were told that you don’t yet qualify for an O-1A visa, EB-1A or EB-2 NIW green card, you can join me in Extraordinary Ability Bootcamp with promo code DEARSOPHIE to receive 20% off.
We’re optimistic about the future. Life always offers us opportunities to grow through contrast and uncertainty, and we remain passionate about our mission to create greater freedom, empowerment, knowledge and love in the world.
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: 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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Dear Sophie: What visa options exist for a grad co-founding a startup?
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:
What are the visa prospects for a graduate completing an advanced degree at a university in the United States who wants to co-found a startup after graduation? Can the new startup or my co-founders sponsor me for a visa?
—Brilliant in Berkeley
Dear Brilliant,
Thank you for your questions and for your contributions. The U.S. economy greatly benefits from entrepreneurial individuals like you who create companies — and jobs — in the U.S.
Let me take your second question first: Yes, it is theoretically possible for your startup to sponsor you for a visa, and for one of your co-founders to be your supervisor. Many visas and employment green cards require a company to sponsor you and for you to demonstrate that a valid employer-employee relationship exists.
Given your situation, timing will be key, particularly since one of your best visa options is the H-1B Visa for Specialty Occupations. The number of H-1B visas issued each year is typically capped at 85,000-60,000 for individuals with a bachelor’s degree and 25,000 for individuals with a master’s or higher degree. Because of the cap on H-1B visas and because the demand for them far outstrips the supply, U.S. Citizenship and Immigration Services (USCIS) holds a lottery once a year in the spring to determine who can apply for this visa.
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