Navigating Immigration for Tech Companies: A Q&A

This is another installment of “Dear Sophie,” a resource dedicated to answering immigration questions relevant to the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these inquiries. She states that these questions contribute significantly to broadening understanding and empowering individuals globally to overcome geographical limitations and achieve their professional aspirations.

Individuals with an Extra Crunch membership gain access to weekly “Dear Sophie” columns. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie:

Our company, a startup, intends to enter an international student employee into this year’s H-1B lottery. This represents our inaugural H-1B submission.

Could you clarify the H-1B procedure and offer some guidance? We are also interested in transferring an Australian employee under the E-3 visa. What is the typical timeframe for this process?

— Plucky in Pleasanton

Dear Plucky:

Thank you for posing these pertinent questions! There is encouraging news for Australian citizens presently in the United States and seeking job transfers, amendments, or extensions. Premium processing is now accessible for the E-3 visa category!

This development allows for adjudications from USCIS to be obtained in as little as 15 days for Australian nationals in the U.S. pursuing E-3 status, whether for transfers, changes of status, or extensions. This significantly streamlines the hiring process for Australians already within the U.S. seeking a new position.

H-1B Lottery and E-3 Processing

Regarding the H-1B visa, the registration window for this year’s lottery will commence at 9 a.m. PST on March 9th and conclude at 9 a.m. on March 25th. Startups must ensure they register all prospective candidates during this period.

For a comprehensive overview of this year’s process and preparation strategies, consider listening to my recent podcast episodes on H-1B Lottery Planning, Part 1 and Part 2.

Effective immigration planning is crucial. I strongly recommend consulting with a seasoned immigration attorney as soon as possible to organize your H-1B candidate registration for the March lottery and to proactively prepare a robust H-1B petition should your candidate be selected.

An attorney will also remain current on evolving immigration policies, such as the rescission by USCIS of a policy enacted during the Trump administration in 2017. This prior policy had effectively disqualified computer programming roles from H-1B visa eligibility.

Furthermore, it’s wise to discuss alternative options for the international student employee in the event they are not chosen in this year’s lottery.

H-1B Visa Registration and Lottery Procedures

The United States Citizenship and Immigration Services (USCIS) has announced a postponement until the following year regarding the transition from a randomized H-1B lottery system to one based on wages. This delayed implementation would have prioritized registrants offered the highest compensation for their role and location. A final rule enacting the wage-based lottery was previously established by the prior administration.

This recent announcement resolves weeks of uncertainty surrounding whether USCIS, under the current administration, would maintain the wage-based H-1B allocation method. This decision aligns with the presidential platform of President Biden.

The Current Lottery System

The existing random H-1B lottery process means that candidates possessing equivalent educational qualifications will have an equal opportunity, irrespective of their proposed salary. However, this situation is subject to change in the coming year.

Whether a random or wage-based system is utilized, applicants holding a master’s degree or doctorate from a U.S. educational institution will continue to have the most favorable prospects for selection in the H-1B lottery.

The annual limit for H-1B visas remains at 85,000. Within this total, 20,000 visas are specifically reserved for individuals with a master’s degree or higher earned at a U.S. university.

USCIS initially conducts a randomized selection from the entire pool of registrants to fulfill the 65,000 regular H-1B cap. Subsequently, an additional 20,000 registrants who hold a U.S. advanced degree are randomly selected under the advanced-degree cap exemption.

Consequently, individuals with a U.S. advanced degree benefit from two separate opportunities for selection. Eligibility requires that the international student employee has obtained their advanced degree from an accredited U.S. institution prior to the filing of the H-1B petition.

Lottery Timeline and Process

Following the closure of the online registration period on March 25, USCIS will employ a computerized random selection process. Selected registrants will be notified by March 31.

A complete H-1B petition must be submitted within 90 days of receiving notification of selection. This establishes a filing deadline of June 30.

Registration Requirements

To register a candidate for the H-1B lottery, your organization must establish an online USCIS account if one is not already in place. This account setup can be completed at any point before the registration period concludes.

Legal counsel can provide assistance with both the account creation and the online registration process.

The following information is required during the online registration:

• The candidate’s complete legal name.
• The candidate’s gender.
• The candidate’s date of birth.
• The candidate’s country of birth.
• The candidate’s country of citizenship.
• The candidate’s passport number.
• Indication of the candidate’s eligibility for the U.S. advanced-degree cap.

A $10 registration fee must also be paid. This can be done through the H-1B registration portal using a credit card, debit card, or direct access to a checking or savings account.

Preparing for the H-1B Process

It is generally advisable for both your startup and the prospective H-1B employee to begin gathering the necessary documentation well in advance of submission. Your startup must have its tax identification number validated by the U.S. Department of Labor to demonstrate its ability to sponsor an H-1B visa holder.

This verification is a prerequisite before your company can file a Labor Condition Application (LCA) with the Labor Department. A successfully approved LCA is then required as part of the H-1B petition submitted to USCIS.

Required Startup Documentation

Beyond the tax ID, your startup will need to provide several supporting documents. These demonstrate the company’s legitimacy and financial stability.

• For newly established startups, provide articles of incorporation, a pitch deck, a comprehensive business plan, term sheets, and cap tables.
• Evidence of the company’s ability to meet the prevailing wage requirements for the H-1B position and its geographic location is crucial. Acceptable documentation includes bank statements, tax returns, and other financial records.
• Proof of ongoing business operations should be included, such as marketing materials, company reports, and website screenshots.
• A formal job offer letter for the H-1B candidate is essential.

The job offer letter should clearly state the job title, a detailed description of the job duties, the benefits package, the salary, and the proposed start date.

Finally, a clear outline of the minimum qualifications required for the position must also be provided.

Essential Documents for Your H-1B Candidate

A current resume is a fundamental requirement for any H-1B applicant. In addition to this, original diplomas, certificates, and academic transcripts are necessary. Scanned copies of these documents should also be readily available.

Required Immigration Records

• Past immigration documentation, such as Form I-20, which confirms F-1 student status, is often needed.
• Form DS-2019, certifying J-1 status, may also be required.

Any documents not originally in English must be accompanied by a certified translation. Both the original document and the certified translation should be submitted.

H-1B Petition Filing Guidance

For valuable insights into the H-1B petition process, consider listening to podcast episodes titled “Your Startup’s First H-1B” and “What Makes a Strong H-1B Petition.” Your legal counsel will be instrumental in demonstrating that the candidate and the offered position fulfill the criteria for the H-1B specialty occupation visa.

Premium Processing and Current USCIS Timelines

Currently, premium processing remains an option for H-1B petitions. Given substantial backlogs across all case types at USCIS, utilizing premium processing is often advisable. This depends on the candidate’s anticipated start date and their current location.

Premium processing, available for a $2,500 fee, provides a guaranteed decision from USCIS within 15 days. Should the H-1B petition be approved, the earliest possible start date for employment under the visa is October 1, 2022, marking the beginning of the federal government’s fiscal year.

Wishing You Success

Best of luck with this year’s H-1B lottery.

All the best,

Sophie

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

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal advice. For a complete understanding of the limitations of “Dear Sophie,” please review our comprehensive disclaimer. You can reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups,” is accessible on all major podcasting platforms. She is currently accepting applications from individuals interested in being guests!

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