Navigating Immigration Law

Navigating Immigration Law
Sophie Alcorn is the Founding Partner at Alcorn Immigration Law and is a Certified Specialist Attorney in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization. In this guide she lays out different employment-based visa and green card options available to companies seeking to hire international talent, and when to use them. Please keep in mind that this article is educational only and does not replace individual legal advice. Sophie recommends that you speak with an expert attorney for any legal advice to assess your options if you think you’re ready to move forward. Immigration is not a one-size-fits-all process, and putting your best foot forward requires individualized attention!

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Questions covered in this guide

What are all of the relevant visa types for employees?

Visas are temporary most visas last between 1 and 3 years, but they can be extended, and work visas are usually company-sponsored. One of the biggest mistakes people make is thinking that immigration is impossible, but there are actually many categories that are tailored for talented individuals to try.

H-1B – for skilled professionals with at least a bachelor’s degree or level of experience. If the candidate dropped out of college, three years of work experience are considered equivalent to one year of a U.S. college education. H-1B visas are limited to 85,000 per year and are chosen based on a “lottery” system.
  • Cap-exempt H-1B – because H-1B visas are limited, a lot of technology startups are looking for alternatives. There’s a sub-type of H-1B that’s not subject to the cap, so it’s called “cap-exempt.” Generally this could apply to nonprofits affiliated with universities or to nonprofit research institutions. Cap-exempt H-1Bs can be filed it at any time of the year and there’s no lottery involved. 
  • One cap-exempt option involves a nonprofit affiliated with universities. Your company can nominate your candidate as Global Talent Fellow to work at the nonprofit. If selected, the nonprofit would sponsor your candidate for the person’s first H-1B to work for five hours a week with students in the U.S. on projects benefiting your company. Then, as soon as the candidate is physically in the U.S. on that H-1B status, the company can file a second concurrent H-1B to work the remainder of the time directly at your company. 

J-1 exchange visitor visa – to allow immigrants to participate in exchange programs. Normally I like to stay away from J-1 since programs for interns and trainees only last 12-18 months and then the candidate generally has to leave the U.S., but during COVID it could be worth it because many consulates are prioritizing J-1 appointments.

O-1 – for people with extraordinary ability. It can be harder to get because you have to be at the top of your field and able to provide evidence in a manner that proves your expertise.

L-1 – for intracompany transfers of executives, managers, and employees of specialized knowledge from an office in another country to an office in the United States.

Country-specific visas, e.g. TN, E3, H1-B1: because of special laws and treaties, immigrants from Mexico, Canada, Australia, Chile, and Singapore can get working visas at any time of the year with no lottery. I recommend that tech companies who’re attempting to hire a lot of engineers identify a university in these countries for recruiting:
  • TN – for people born in Mexico or Canada. 
  • E-3 – for Australians.
  • H-1B1 – for people who’re citizens of Chile or Singapore.

What are all of the relevant green card types for hired talent (employees)?

Green cards are for Permanent Residence – these offer lifetime status and a track to become a citizen, and naturalize. They’re not always employer-sponsored, they could be sponsored by a family member, such as employment-based or family-based. There’s also an annual “Diversity Lottery” for green cards.

EB green cards stand for “employment-based” – the categories are numbered 1-5 for preference level (EB-1 gets the most preferential treatment by the government):
  • EB-1A, EB-1B, and EB-1C – green cards are limited in number by how many the government gives out every year, so first priority is given to people of extraordinary ability. For this type of admission to the U.S., companies aren’t required to test the labor market to find out if there are Americans who can do the job instead of them.
    • EB-1A – extraordinary ability
    • EB-1B – researchers and college professors
    • EB-1C – executives transferring from multinational companies to the U.S. 
  • EB-2 and EB-3 – these types usually have PERM, an extra step at the beginning to prove there aren’t Americans available who could do the job, so it’s a three-step green card process:
    • Step 1 is the PERM Labor Certification, where the company essentially tries to find Americans to replace the person. 
    • Step 2 is the I-140 Petition, in which the company petitions the specific candidate for a green card.
    • Step 3 is for the candidate to file for their green card, either through an adjustment of status process in the U.S. or an immigrant visa process abroad. 
  • EB-2 NIW – you can waive the PERM requirement of an EB-2 if it’s in the national interest.

How should you decide whether to pursue a visa or a green card for an employee?

Most companies initially hire an employee using a temporary, nonimmigrant visa or status, and later support the green card process for their employee to become a permanent resident. To decide visa vs. green card, consider:
  • What do you need to do to recruit the person? Is this a new recruit or somebody who’s already been working with you because that will help determine the level of urgency, timing, and if it’s part of their negotiation about their benefits package. For example, I’ve seen a Stanford Ph.D. graduate who was so critical to a company that they sponsored him for three types of green cards. They couldn’t make the company happen without him, so they pulled out all the stops.
  • What is your company policy? Many companies require someone to work with them first. Typically they’ll start with the H-1B, and some companies want to wait at least a year until they start the green card process, but for certain candidates that wait might be untenable, and they might immediate green card sponsorship to obtain H-1B extensions (most common for individuals born in India or China).
  • Where was the candidate born? If they’re from India or China, and they’re going to run out of time on their H-1B, you’ve got to get that green card. Before the beginning of their sixth and final year of the H-1B, you have to reach certain milestones in the green card process to make sure they can keep getting extensions and keep working for you. 
  • What is the candidate’s job and level of expertise? Based upon their level, we decide where to slot somebody into those different EB categories. We’re also trying to find which category will take the least amount of time, but we also want to set everyone up for success, so we want to make sure they’ll be approved in the category we put them in. If we can put the candidate into EB-1, we will, because we can skip the whole PERM recruiting step and jump to the I-140 petition.
  • How much do you want to invest? You can have multiple processes running in parallel for someone, so you have to decide how much you want to invest based on how urgent and important it to retain your employee.

What are some of the relevant visa and green card options specifically for founders?

Founder green cards are a little different; founders should probably avoid EB-2 or EB-3 with PERM – if someone has significant equity in the company, it’s harder for the government to believe that the company will legitimately seek Americans in the PERM process so there is more scrutiny.

EB-1A and EB-2 National Interest green cards are good options – the benefit is that founders are allowed to self-petition. Self-petitioning is also helpful to the founder’s long-term immigration risk mitigation as they’re not dependent on the company if it goes out of business.

With an EB-2 National Interest Green Card, you get to skip the PERM process because what you’re doing is deemed to be good for America, and the EB-1A process doesn’t require PERM, just a showing a showing of extraordinary ability.

Many founders arrive on ESTA or a B-1/B-2 visitor visa to establish their business – ESTA is a 90-day Visa Waiver Program and a B-1/B-2 is a visitor visa for business or pleasure. What’s allowed? Temporary business visits, negotiations, fundraising, and setting up a company. What’s not allowed? You’re not able to live in the U.S. permanently or work for the company and earn money or be an employee.

OPT (and STEM OPT) – allows for international students to be self-employed for 12 months after graduation. If they have a STEM major, they may be able to continue for an additional two years on OPT if their company meets certain requirements including a training plan and enrolling in Everify.

Transferring an H-1B – this situation occurs when a person wants to break away from their current employer. They might be from India or China, and they haven’t been able to get a green card yet, but they have a burning desire to create a startup or switch jobs and work for another company. An H-1B transfer for a startup for a founder is much easier for a CTO, rather than a CEO.

O-1A – for extraordinary ability; this used to be the most popular option for founders, and is still common. It requires a showing that you meet at least 3 of 8 criteria, letters of recommendation, and demonstrating that you’re an expert in your field.

IEP (International Entrepreneur Parole) – this is a new option for startup founders. It allows for founders to live and work in the U.S. and build their startup for 2.5 years, with the option of a 2.5 year renewal. To qualify, the company must be less than 5 years old, must have raised $265K in the last 18 months, and the applicant must own at least 10% of the company, and have a C-level position.  It’s not technically a visa, which means that if you’re in the U.S. and you’re approved; you’ll have to leave and come back to activate it.

Are there certain countries from which immigration is harder or slower? What are the dynamics at play?

It’s harder for people born in India and China to get employment-based green cards – because there’s a numerical limit on the number of green cards that the government can hand out every year to people from one specific country, and there is a large demand from people born in these countries.  Many look to get ahead through the EB-1 category which is prioritized first each year before the other green card categories run out.

The best bet for these candidates to continue working in the U.S. while awaiting a green card is to obtain an H-1B, which can be renewed indefinitely assuming certain milestones in the green card process are met.

What skill sets make it easier to qualify for a green card? What constitutes “extraordinary” of “exceptional” ability?

Extraordinary ability is required for the O-1A visa and EB-1A green card – this is the highest level of ability. It’s interpreted in the law as being at the top of your field in a country or in the world.

Exceptional ability for the EB-2 – for an EB-2 you can have at least a Master’s or the equivalent, or you can qualify with Exceptional Ability.  “Exceptional”  is not quite extraordinary, it’s a lower standard. To be considered, you have to show three qualifications from a list, like:
  • A degree from the field
  • 10 years of experience
  • A license to practice
  • A high salary
  • Joining professional associations/ being recognized by your peers.

What does sponsoring an employee entail (in terms of time, cost, and responsibility)?

It can take several weeks or even a few months to onboard a new hire – depending on the nonimmigrant category, what country they’re in, and whether they need a visa, as well as other possible requirements.

Preparation usually takes a few weeks or a couple of months, with active HR effort at the beginning – HR has to be really involved in the first 1-3 months because that’s when everything is getting prepared and being filed. There’s also some level of compliance and monitoring ]to stay on top of deadlines.

Most immigration law firms work on a project basis, for $3-10k – this is per process, or sometimes, per step of the process.  The overall investment depends on what’s needed, the number of family members, the level of urgency involved, and other filing fees (such as premium processing). It’s usually scoped as a flat fee to prepare and file the petition, with audits or requests for evidence done on an hourly basis. 

Special considerations apply if you terminate or transfer someone – if you fire someone who’s on an H-1B, you have to notify the government that they’re no longer working for you and you are supposed to pay the cost to get them home, for example. If you change their job location, it could affect the salary requirements for an H-1B. It’s important to consult with your immigration counsel before making any changes with your employees who are immigrants.

What does a startup need to do to hire someone who is currently sponsored by another company?

It’s possible to transfer employment-sponsored visas – exactly how this works depends upon visa type, whether they’re currently employed or laid off by that company, and the start date. An immigration lawyer can help you assess where the candidate has gotten with their former employer, how soon you can have the person onboarded, and what the obligations or risks are. 

The most common are H-1B, TN, or E-3 transfers – if someone was laid off in one of those categories and their visa hasn’t run out yet, they typically have a 60 day grace period where you can file a transfer to your new company. You should coordinate the start date on your offer letter with the immigration paperwork and with their plans to give notice of their current company.

You might also transfer a green card process – especially if they’re from India and China and they’re on the third stage of the green card process with a work permit. They might be able to transfer part or all of their green card process to your company.

What does a startup need to do to hire someone who is currently on a student visa?

Graduates can work full or part-time on OPT, with a STEM OPT extension – if you want them to get a STEM OPT extension, you need need to have a training plan that you complete showing how for the next two years, what they learn is going to help them succeed in the field that they studied, which your attorney can help you prepare. Your company also needs to be enrolled in the E-verify system to verify people’s I-9 identity documents for work. If you’re enrolling in that federal system, use it consistently for all new hires.

You can hire students before graduation with limitations under CPT (Curricular Practical Training) and pre-completion OPT – if it’s before graduation, their school has to approve. Whether this program is available to any particular candidate is very specific to their school and whether their international student office will allow them to participate in either of these programs. 

If you make an offer to someone before they graduate, think about getting in the H-1B lottery early – it’s possible to put them in the lottery in March, even if they have a May or June graduation date. You don’t have to employ someone currently to put them in the H-1B lottery.

What can you do if you have an employee who didn’t get selected in the H-1B lottery?

If you don’t get selected in the H-1B lottery:
  • If you have time left on OPT, try again continue to work on OPT or STEM OPT and try the H-1B again the next year
  • If the last available year of OPT or STEM OPT is about to run out, try the cap-exempt H-1B program – this can be a handy backup option.
  • Enroll in another educational level – such as a master’s or Ph.D. It’s risky, but many universities offer “Day 1 CPT,” which means you can keep working with your company the whole time you’re enrolled in school. There can be a lot of fraud in these programs, so it’s extremely important that candidates keep detailed records of their studies to prove their legitimacy.
  • Leave the country and work remotely – there are ways to relocate talent to other countries such as Canada and then eventually bring them back to the U.S. on another type of visa. Another option is to have the candidate work abroad for the company for a year and then attempt to transfer back under an L-visa.

What third-party resources should you leverage to successfully and compliantly employ international talent?

Resources for the company
  • Lawyers the company will need to hire an immigration lawyer to manage your overall caseload, develop your company policies, and ensure each case is filed properly for each employee.
  • CPA with immigration experience – because you might be dealing with taxes in different countries or retirement accounts in different countries, which can be difficult to transfer. 
  • A global PEO – to help U.S. employers hiring international talent, such as contractors who work for you while living in another country. You could onboard them through a PEO’s employer of record program. International companies that want to hire engineering talent in the U.S. can do so if they don’t have a U.S. entity with the same employer record PEO system. If you have immigrant talent in the U.S. that has to leave, it can be a way to continue working with them when they’re outside of the U.S..
Resources for the employee
  • An immigration lawyer – this is typically the same immigration lawyer paid for by the company, but a candidate should get an independent attorney if the employee wants to change jobs or start a company because the company’s lawyer may be obligated to inform the business that the employee is considering leaving. 
  • International moving vendors – e.g. Shyft Moving, these vendors are paid by the company as a benefit and include end-to-end relocation benefits. Resources could include things like a tax advisor who can help the employee settle in post-arrival for their new tax situation or a multinational financial planner who can help the employee make an investment strategy for them and help them move old investments.

What are the most important pieces to get right?

Be communicative with your immigration lawyer before you make an offer – it’s not enough to have an immigration law firm on retainer; you need to discuss a prospect’s situation with them before you make offers. Then you can evaluate different candidates and figure out what’s the timeline for each and what’s the investment. 

Leave no stone unturned – have open communication with your immigration counsel so that you can brainstorm solutions together. Avail yourself of uncommon, creative solutions to get onboard and retain your talented team.

What are the common pitfalls?

Don’t try to do it yourself – there are horror stories about companies trying to do this themselves and then having employees being grilled and rejected at the border, with their start date significantly delayed, or being denied entry to the U.S.

Don’t forget about your expiration dates – each employee should be responsible for monitoring it themselves, but all companies should monitor all employees’ immigration status and understand when that expires.

Start green cards early – because you don’t want anybody to run out of time.

Disclaimer: The information provided in this guide does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Consult with a lawyer about a candidate or employee’s particular situation.

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