Travel Bans & H-1B Alternatives: Advice for Sophie

Dear Sophie: Navigating H-1B Challenges and Travel Restrictions

This is another installment of “Dear Sophie,” a column dedicated to addressing immigration questions specifically related to the technology sector.

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

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie is eager to address them in her next column.

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Dear Sophie,

The 2021 H-1B lottery was a complex process, filled with uncertainty.

Our company sponsored multiple candidates during this lottery. While one registrant was initially selected in March, no further selections occurred in the July round.

Recently, another registrant from South Africa was chosen in November. However, travel restrictions related to the omicron variant currently prevent him from entering the U.S.

What course of action should we take? Do you have any recommendations for our other potential hires who were not selected?

— Eager Employer

Dear Eager,

Congratulations on successfully securing selections for two of your registrants in the recent H-1B lottery! Many of our clients also experienced selections in subsequent rounds.

This year’s H-1B lottery proved to be a prolonged process. It’s encouraging to observe that U.S. Citizenship and Immigration Services (USCIS) remains dedicated to fulfilling the 85,000 H-1B cap.

I discussed this topic in a recent podcast, where I outlined anticipated immigration changes and trends for the coming year.

I predict that prioritizing the allocation of all 85,000 H-1B visas annually will remain a key objective for the Biden administration.

Efforts to reduce existing immigration backlogs are underway, focusing on rebuilding resources and staffing levels at USCIS and the U.S. Department of State, which experienced reductions during the previous administration.

Updated Travel Restrictions

A new travel policy was implemented by the Biden administration on November 29th, prompted by concerns surrounding the omicron variant. Currently, individuals who have spent time in South Africa, Botswana, Eswatini, Lesotho, Namibia, Malawi, Mozambique, or Zimbabwe within the last 14 days are prohibited from entering the U.S.

However, U.S. citizens, lawful permanent residents, and the spouses of both are exempt from these new restrictions.

Should this policy continue, and an H-1B petition for a prospective employee originating from South Africa be approved, they could fulfill the 14-day waiting period in a country not subject to the travel ban.

Alternatively, obtaining a waiver, should one become available, is another potential avenue.

Past Experiences with Travel Bans

During prior travel restrictions impacting South Africa, the U.K., Ireland, and other nations, numerous clients successfully circumvented the bans.

They achieved this by spending two weeks in a third country – often a tropical destination – that had no travel restrictions or entry requirements before proceeding to the United States.

To gain entry into the U.S. under current guidelines, the new employee must demonstrate proof of full vaccination.

Furthermore, a negative COVID-19 test result, obtained within three days of arrival, is also required.

Seeking Expert Guidance

It is consistently advisable to seek counsel from a qualified immigration attorney.

This support is valuable for navigating the complexities of this H-1B case, as well as any other matters related to international recruitment.

Keep in mind that the deadline to submit the complete H-1B petition for individuals selected in the November lottery extends until mid-February.

• Key Takeaway: Staying informed about evolving travel policies is crucial.
• Important Note: Consult with legal counsel for personalized guidance.

Alternatives to the H-1B Visa

A prominent pathway beyond the H-1B visa lottery involves securing a concurrent cap-exempt H-1B through collaboration with an employer qualified for cap exemption. While this approach necessitates a greater financial outlay compared to a standard H-1B petition, the processing timeline is significantly reduced.

Our legal practice frequently works in conjunction with the Open Avenues Foundation to assist private organizations in acquiring concurrent, cap-exempt H-1B visas for their personnel, circumventing the uncertainties of the annual lottery. This represents a prompt and reliable solution, regardless of the beneficiary’s current location – whether inside or outside of the United States.

Further options for consideration include the O-1A visa, designed for individuals demonstrating extraordinary ability. A key distinction from the H-1B is that the O-1A visa is not subject to an annual numerical limitation. Furthermore, employers are not obligated to submit a Labor Condition Application to the U.S. Department of Labor.

Several visas are specifically designated for professionals originating from particular nations. These include the TN visa for citizens of Canada and Mexico, the E-3 visa for Australian nationals, and the H-1B1 visa for individuals from Chile and Singapore. Additional alternative strategies are outlined below.

An experienced immigration lawyer can assess your company’s specific needs and the qualifications of potential employees to determine the most suitable immigration route.

We wish you success in onboarding new talent to the U.S. and fostering the expansion of your business!

— Sophie

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The content within “Dear Sophie” is intended for informational purposes only and should not be construed as legal counsel. Please refer to our complete disclaimer for further details regarding the limitations of this column. Direct inquiries can be addressed to Sophie at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all leading podcast platforms. She is currently accepting applications from those interested in appearing as guests!