Here’s another edition of “Dear Sophie,” the advice column that answers questions about immigration on working in tech companies.
“Your questions are critical to spreading the knowledge that enables people around the world to rise above borders and pursue their dreams,” said Sophie Alcorn, immigration lawyer in Silicon Valley. “Whether you’re in people operations, a founder or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”
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My startup entered two H-1B candidates for this year’s lottery. Unfortunately, neither was selected.
One is my co-founder, the other is on OPT. Help! We cannot afford to leave the United States. What are our options?
– Lost in Los Angeles
Take a deep breath; I’ve got your back. There are many creative immigration avenues for you, your co-founder, and your F-1 OPT employee to explore. We’re going to look at several options, and you can also check out my recent podcast in which my colleague Nadia Zaidi and I go into them in more detail.
I hope the ideas below inspire you and fill you with a sense of hope and possibility. As always, I suggest consulting with an experienced immigration lawyer who can help you identify the most solid path forward, as well as backup options for your co-founder and employee. Which particular immigration strategy is best for you is always an individual determination. It’s best to identify this during a personal consultation with a lawyer like me based on a variety of factors, including each person’s immigration history and your startup’s goals.
Co-Founder Immigration Options
For a funded startup, there is an excellent plan B H-1B: the Cap-Exempt H-1B. Especially if your co-founder has a background in STEM (and maybe even for some founders who don’t), there is a wonderful new triple-win option that supports startups, international applicants, and even various American students. in STEM looking for a better project. based learning opportunities.
What is this magical rainbow striped unicorn option, you ask? Well, here’s the legal background: some employers can apply for an H-1B visa at any time without going through the lottery. These employers – called cap-exempt employers because they’re not subject to the H-1B annual cap of 85,000 visas available to for-profit employers – include:
- Institutions of higher education.
- Non-profit organizations linked to higher education institutions.
- Non-profit research organizations.
- Government research organizations.
If your co-founder can get a part-time H-1B visa through one of these cap-exempt employers, your startup can simultaneously sponsor your co-founder for an H-1B regardless of recent lottery results.
To take advantage of this special act, I am a big fan of Open Avenues Foundation, which offers a Global Talent Scholarship. In this program, international talent can receive no-cap H-1B visas from top university students for approximately five hours per week as part of actual project-based work in their area of expertise. for the startup that nominated them for the scholarship. The candidate can stay (or come) in the United States, your startup gets a team of students working on a group project that benefits your business and increases diversity in your recruitment pipeline, and American students benefit from a high quality practical. STEM learning.
Once your candidate’s first H-1B Cap-Exempt free is in place, your startup can apply for a second concurrent H-1B Cap-Exempt for direct employment at a startup.
Interested in variations? If you are not in STEM but have a university that would host you (free at university), you can potentially partner with the OFA. In addition, many universities in the United States have Global Entrepreneur-in-Residence programs that can help international co-founders qualify for concurrent H-1B Cap-Exempt. Your startup should also consider sponsoring your co-founder for an O-1A visa or change of status.
Another option to consider is for your co-founder to apply for International Entrepreneur’s Parole (IEP), a new 30-month immigration status to the U.S. The International Entrepreneur’s Rule (IER) has been created by President Barack Obama and is the closest thing to the United States. currently has a start-up visa. The Trump administration tried to eliminate it, but the National Venture Capital Association, led by Jeff Farrah, successfully challenged the administration’s efforts in federal court, so the IEP remains on the books.
A lot of people don’t believe this is an option yet, so I’m currently looking for international startup founders with a strong case to ask IEP to test this new program and demonstrate its existence to the world. We are currently looking for founders of global startups who own at least 15% of the capital of an American startup less than five years old and who have raised at least $ 250,000 from American investors. If you would like to be part of our list of free interests, you can fill out this form. If we think you have a strong application, we will contact you.
If your co-founder wants to stay in the United States permanently, consider starting a green card now, such as the EB-1A Green Card for People of Extraordinary Ability or an EB-2 NIW (National Interest Waiver) Green Card for people with exceptional abilities. . Of these, the EB-1A is the fastest option, but its qualification requirements are more stringent than for the EB-2 NIW.
Immigration options for F-1 OPT employees
If your F-1 OPT employee has obtained a qualified STEM degree, that employee can apply for a 24-month work extension, known as STEM OPT. This will allow the employee to remain in the United States to continue working for you. In the meantime, you can re-register them next year for the H-1B lottery. If there is no possibility for STEM, please see the Cap-Exempt H-1B option explained above.
If your F-1 OPT employee only has a bachelor’s degree, they might consider pursuing higher education. People with a master’s degree or higher from a US university have a better chance of being selected for the annual H-1B lottery. Indeed, 20,000 of the 85,000 H-1B visas available each year are reserved for people with a master’s degree or higher from a US university.
You should be aware, however, that next year’s H-1B lottery will likely change from the current random selection process to one based on the highest wages. Unless the Biden administration changes the policy, which was devised by the previous administration, employers who pay their H-1B applicants a Level III or higher salary have the best chance of being selected to apply for a H-1B visa.
As you know, sponsoring employers must agree to pay an H-1B candidate the greater of the actual salary paid for the job or the current salary, which is divided into four levels based on experience. required for the position and the position of the position. . The Level I salary is primarily for an entry level position, while a Level IV salary is for a position requiring the most experience. While this will add more predictability to the annual H-1B ‘lottery’, start-ups and small businesses may find it difficult to compete with more established companies on salary, especially because stock options and shares are not included in the calculation of wages.
If you need to find alternative visa solutions, you can always consult a lawyer. I hope all of these options help you achieve the control and freedom of action you have in this situation. You have choices!
All my best,
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the “Dear Sophie” limits, please see 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 want to be invited, she accepts applications!