US Immigration System: A Frustrating Journey - Dear Sophie

This is another installment of “Dear Sophie,” the advice column dedicated to answering immigration questions relevant to those working in the technology sector.

“Your inquiries are essential for disseminating knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations,” states Sophie Alcorn, a Silicon Valley-based immigration lawyer. “Whether you are involved in people operations, are a company founder, or are seeking employment in Silicon Valley, I welcome the opportunity to address your questions in my next column.”

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Dear Sophie:

With the anticipated change in U.S. leadership and a potential shift towards more favorable immigration policies, I am contemplating expanding my company into the U.S. following the COVID-19 pandemic. However, I am finding it difficult to sort through the extensive and fragmented information available online regarding different visa types and procedures.

Could you provide a comprehensive overview of the U.S. immigration system and its operational mechanics to help me gain a clear understanding of the process I am about to undertake?

— Resilient in Romania

Dear Resilient:

We extend a warm welcome to the U.S.! Our nation significantly benefits from international entrepreneurs such as yourself who choose to expand here, fostering innovation, generating employment opportunities, and strengthening the worldwide economy.

Inspired by my father’s career path, I became an immigration attorney with the core objective of assisting individuals in realizing their dreams of living in the United States. A crucial aspect of achieving this is providing people with the necessary information and resources to define their immigration objectives and attain them efficiently.

I recently participated in a podcast where I presented a concise, high-level summary of the U.S. immigration system. The United States is a country built by immigrants, and its immigration system reflects the values and principles enshrined in our Constitution.

In 1965, the U.S. Congress enacted the Immigration and Nationality Act, which serves as the cornerstone of all current U.S. immigration laws. Despite numerous amendments over the past 50+ years, the system continues to operate under the same fundamental framework established at that time. I particularly appreciate the multitude of legal pathways available for individuals to immigrate to the U.S.

A wide array of visa and green card categories exist to help you navigate your journey. As a resourceful attorney with ample time before relocation, numerous options are available to explore. The law is not merely a set of restrictions; it can be a powerful instrument for achieving positive outcomes.

Although the system presents challenges and has room for improvement, successful navigation is achievable. Whether you are an individual, a founder, a CEO of a startup, or a professional in HR or Global Mobility at a large corporation, or a couple in love – you simply need to know the appropriate questions to ask and have access to the information that will empower you to select the optimal immigration route.

My father consistently emphasized that immigration law encompasses five primary areas:

• Business immigration
• Family immigration
• Asylum
• Appeals
• Removal and deportation

I have experience handling cases in each of these areas, but my firm specializes in business and family immigration. Business immigration includes both visas and green cards, while family immigration pertains solely to green cards based on an individual’s relationship to a U.S. citizen or lawful permanent resident (green card holder), encompassing fiancé visas and various green card pathways.

Generally, the U.S. offers two categories of visas: nonimmigrant visas and immigrant visas. Immigrant visas are also known as green cards.

Nonimmigrant visas permit temporary stays in the U.S. Each work-related nonimmigrant visa necessitates an employer to sponsor the individual and employ them following approval and arrival. These visas are designed for individuals possessing specific skills, education, or expertise that will benefit the employer, their industry, or the U.S. as a whole, such as a multinational executive (L-1), a professional in a specialized field (H-1B), or someone with exceptional talent (O-1).

Certain nonimmigrant visas are contingent upon the applicant’s country of origin or the existence of a trade agreement between their home country and the U.S. Each work visa has distinct renewal requirements. I delve into these and other startup-friendly visas and green cards in greater detail in a podcast dedicated to the most advantageous visas and green cards for startups.

A green card grants the holder the right to live and work permanently in the U.S. and represents the initial step towards obtaining U.S. citizenship. Some nonimmigrant visas directly lead to a green card, while others do not. Therefore, it is crucial to adopt a creative and strategic approach from the outset of your U.S. immigration process.

The majority of employment-based green cards require an employer sponsor. The exceptions are the EB-1A green card for individuals of extraordinary ability and the EB-2 NIW (National Interest Waiver) for those with exceptional ability. Individuals can apply for these green cards independently, without an employer sponsor or job offer. We explore both of these green cards, along with the O-1 nonimmigrant visa, in Extraordinary Ability Bootcamp, an online course that provides an in-depth examination of the O-1A nonimmigrant visa, and the EB-1A and EB-2 NIW green cards, for which you may qualify.

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. Please review the immigration options chart we developed, which outlines the most common visa and green card categories applicable to founders, investors, and skilled professionals.

In addition to the various visa and green card options, it’s important to know that you can apply for a visa or green card while residing outside the U.S. or while already living within the country. Applying from outside the U.S. involves submitting your application at a U.S. embassy or consulate, a process known as consular processing. While living in the U.S., you can apply for a change of status to a different visa or an adjustment of status to a green card. For further information regarding specific visas and green cards and navigating the U.S. immigration system, please consult my weekly podcast.

Even amidst the challenges of COVID-19, I am confident you will successfully navigate the process of expanding your company to the U.S. I wish you good health and continued success in 2021!

Sincerely,

Sophie

Do you have a question? Submit it here. We reserve the right to edit your submission for clarity and/or brevity. The information provided in “Dear Sophie” is for general informational purposes only and does not constitute legal advice. For more information on the limitations of “Dear Sophie,” please review our complete disclaimer here. You can reach Sophie directly at Alcorn Immigration Law.

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