Immigration and Naturalization: 3 Questions Answered

Navigating Immigration Challenges in the Tech Sector: A “Dear Sophie” Recap

This article presents another installment of “Dear Sophie,” an advice column dedicated to addressing immigration questions relevant to those working within the technology industry.

Sophie Alcorn, a Silicon Valley-based immigration lawyer, emphasizes the importance of accessible immigration knowledge. She welcomes questions from individuals in people operations, founders, and job seekers, aiming to provide guidance in her upcoming columns.

TechCrunch+ subscribers gain exclusive access to weekly “Dear Sophie” columns. A promotional code, ALCORN, offers a 50% discount on one- or two-year subscriptions.

Question 1: F-1 OPT Expiration and the H-1B Lottery

Dear Sophie,

My F-1 OPT authorization concludes in June. My current employer intends to register me for the H-1B lottery this March.

What are my potential options if I am not selected in the lottery?

—Gritty Grad

Dear Gritty,

Your eligibility for a STEM OPT extension hinges on your field of study. If qualified and approved, this extension would grant you an additional two years of work authorization within the United States.

Recent developments offer encouraging news! Access to STEM OPT extensions has become more accessible, as the administration has announced plans to enhance immigration opportunities for individuals in STEM disciplines. Cori Farooqi, an associate attorney specializing in family immigration law, and I recently discussed proactive immigration strategies for the new year.

We both concur that developing strategic contingency plans regarding immigration and naturalization is crucial. Consulting with an immigration attorney is also highly recommended to navigate the latest immigration changes and achieve your objectives.

Exciting news from last week may benefit you directly: Graduates in fields like data science, data analytics, business analytics, data visualization, financial analytics, social sciences, environmental studies, and climate science now qualify for the STEM OPT extension. The Secretary of Homeland Security recently expanded the list of STEM fields eligible for STEM OPT by adding 22 new disciplines. This is a significant advancement!

Remember that you can apply for STEM OPT no earlier than 90 days before your current OPT authorization expires. Considering current USCIS backlogs and processing times, coordinating with your university’s Designated School Official (DSO) and your employer to file for STEM OPT as soon as possible is advisable.

Should you secure STEM OPT but not be chosen in the H-1B lottery, you’ll have further opportunities to participate in future lotteries. If you are selected in the H-1B lottery but are ineligible for STEM OPT, explore the “Cap Gap” option, which allows certain recent graduates to continue working in the U.S. until their H-1B status becomes effective on October 1.

While hoping for the best, reviewing a previous “Dear Sophie” column discussing alternatives to the H-1B lottery process is a prudent step.

Wishing you the best of luck!

—Sophie

Question 2: L-1A Visa Expiration and H-1B Eligibility for a Spouse

Dear Sophie,

My L-1A visa will expire later this year. My wife has been with me throughout this period on an L-2 visa. Is my wife eligible to apply for an H-1B visa this year?

Would she be required to depart the country to activate it?

—Helpful Hubby

Dear Helpful,

Thank you for posing this important question. Your wife is not obligated to leave the United States before her employer or a prospective employer registers her for the H-1B lottery in March and, if selected, petitions for a change of status.

In fact, many immigration attorneys recommend that clients remain in the U.S. as long as feasible, given the ongoing difficulties with travel and obtaining stamping interviews. Discuss the specifics of your wife’s situation with your attorney, as her current expiration date may be linked to the validity of your L-1A visa.

If she is selected in the H-1B lottery and approved, her employer can likely file for a change of status from L-2 to H-1B. Despite the lifting of COVID-related travel restrictions and the U.S. Department of State’s allowance of interview waivers for certain non-immigrant visas, securing an H-1B for a candidate already in the U.S. through the change of status process remains faster.

Regarding your own options beyond the L-1, consult your attorney about potential H-1B lottery eligibility. There is a relationship between the time spent in L-1 status and H-1B status within the U.S.

Also, investigate your eligibility for an O-1A visa. The O-1A is a relatively quick visa option for eligible individuals, and obtaining it is becoming easier for those in STEM fields. USCIS recently announced special consideration for individuals with STEM expertise to attract and retain international talent.

An immigration attorney can help you identify other visa and green card options and develop backup plans tailored to your and your wife’s timing, goals, and circumstances.

You’ve got this!

—Sophie

Question 3: Expiring Green Card and Divorce

Dear Sophie,

My 10-year green card will expire later this year. I have been married to a U.S. citizen for 11 years, but we are currently divorcing.

Can I apply for U.S. citizenship even after the divorce is finalized?

—New Year, New Life

Dear New,

Congratulations on embarking on this new chapter. You are likely already eligible to apply for U.S. citizenship. An immigration attorney would likely have advised you that, with a marriage-based green card, you could have applied for citizenship three years after receiving it, provided you remained married to your U.S. citizen spouse.

Alternatively, if you received your green card through a different family member, an employer, or self-petition, you became eligible to apply for citizenship after five years of permanent residence.

Given the current processing times at USCIS, which exceed a year for naturalization applications, submitting your application as soon as possible is recommended to exercise your right to vote and enjoy the benefits of citizenship.

If you haven’t already, work with an immigration attorney to renew your green card to ensure a smooth process, as renewals can take a year or more. Your attorney can also help you obtain temporary proof of permanent residence for continued work or travel.

Wishing you all the best!

—Sophie

Do you have a question for Sophie? Submit it here. We reserve the right to edit submissions for clarity and space.

Please note that the information provided in “Dear Sophie” is for general informational purposes only and does not constitute legal advice. For details regarding the limitations of “Dear Sophie,” please refer to our full disclaimer. “Dear Sophie” is a federally-registered trademark and you can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. She is currently accepting applications for potential guests!