Fastest Immigration Options - Ask Sophie

Navigating Immigration for Tech Companies: A Q&A with Sophie Alcorn

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

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

Access to weekly “Dear Sophie” columns is available to Extra Crunch subscribers. A 50% discount is offered on one- or two-year subscriptions using the promo code ALCORN.

Question: Urgent Hiring Needs for AI Engineers

Dear Sophie:

Our startup is facing an immediate need to recruit 50 engineers specializing in artificial intelligence and related disciplines. What visa and green card pathways offer the fastest processing times for highly skilled immigrant engineers?

Furthermore, how might President Biden’s proposed immigration bill impact our hiring efforts?

— Mesmerized in Menlo Park

Answer: Expedited Visa Options for Rapid Growth

Dear Mesmerized,

This is a frequently asked question, particularly among startups that have recently secured funding and are aiming for rapid expansion. I recently discussed the most expedient visa categories for startups seeking to quickly bolster their teams in a recent podcast episode.

I consistently recommend seeking guidance from a seasoned immigration attorney. They can assist in developing and implementing a streamlined, cost-effective strategy for recruitment and immigration. An attorney will also remain current on evolving immigration policies and potential changes stemming from the Biden administration’s U.S. Citizenship Act of 2021.

This proposed legislation, introduced in both the House and Senate, aims to facilitate the entry of more international talent into the U.S. and alleviate existing backlogs in employment-based visa processing. Given the substantial advantages this legislation offers employers, I urge your startup – and other companies – to communicate your support to your congressional representatives.

Currently, many U.S. embassies and consulates are operating at reduced capacity, impacting routine visa and green card processing due to the ongoing pandemic. Consequently, it is generally more efficient to hire both American and international workers already present within the U.S.

Despite substantial processing delays at U.S. Citizenship and Immigration Services (USCIS) – attributed to the coronavirus and an increased volume of applications – Premium Processing remains available for the majority of employment-based petitions. We continue to assist individuals with scheduling U.S. visa appointments at consulates abroad, utilizing various national interest justifications.

Considering these factors, the following visa categories represent the quickest routes to hiring international talent.

• H-1B Visa: A common option for skilled workers in specialty occupations.
• L-1A Visa: Suitable for intracompany transferees in managerial or executive roles.
• O-1 Visa: Reserved for individuals with extraordinary ability or achievement.

H-1B Visa Transfers for Startups

Employing talent through H-1B visa transfers to your startup is often achievable within a couple of months when utilizing premium processing services. This optional service involves a fee, but it provides a guarantee from USCIS that the petition will be processed within 15 calendar days.

Notably, individuals transferring under the H-1B visa can commence employment with your startup even prior to USCIS issuing a receipt notice or reaching a decision on the case. Confirmation of petition receipt by USCIS is crucial, making shipment tracking highly recommended.

Premium processing facilitates the acquisition of a digital receipt, addressing potential delays with paper receipts. While I previously hesitated to recommend this approach during the prior administration, I now feel more confident offering it as a viable option under the current administration. The H-1B visa uniquely permits individuals to begin working immediately upon filing a transfer application.

Long-Term Considerations: Green Card Sponsorship

To enable your company to extend the H-1B visa beyond its six-year limit, the transferee will need to pursue a green card. This can be achieved through employer sponsorship or self-petitioning. Ideally, candidates should possess at least one year remaining on their current H-1B visa or a valid priority date.

A priority date represents the date the Labor Department received a labor certification application (PERM) – the initial step in the EB-2 or EB-3 green card process for employer-sponsored applications – or the date USCIS received a green card petition. If a previous employer initiated the green card petition, the individual can maintain that priority date while your company sponsors them.

Impact of Per-Country Caps

Individuals originating from India and China often encounter significant delays, potentially spanning years or even decades, in obtaining a green card number due to per-country limitations. Should the U.S. Citizenship Act of 2021 be enacted, these per-country caps would be removed, substantially decreasing green card processing times.

O-1A Visa

Obtaining an O-1A extraordinary ability nonimmigrant visa for individuals currently present in the United States is generally a streamlined procedure, typically completed within four to six weeks.

The designation of "extraordinary ability" for the O-1A visa should not be a deterrent for either the sponsoring organization or the prospective employee.

Qualifying for the O-1A Visa

Approval for the O-1A visa is achievable even without accolades such as a Nobel Prize.

Several alternative criteria can be utilized to demonstrate extraordinary ability.

• Holding issued patents can serve as evidence.
• Receipt of an internationally recognized prize or award is a qualifying factor.
• Publication of articles in respected professional or major publications is considered.
• Other significant achievements can also contribute to a successful petition.

These examples illustrate that a diverse range of accomplishments can fulfill the requirements for O-1A visa approval.

Many startups have successfully secured O-1A approvals based on these alternative qualifications.

The H-1B Visa Lottery: A Guide for Candidates

Immediate action is recommended for any individuals who do not currently possess an H-1B visa. The registration period for the current year’s H-1B lottery commences on March 9th and concludes on March 25th.

Successful lottery selections allow individuals to begin employment as early as October 1st, contingent upon approval of the H-1B petition by USCIS.

Although transferring an existing H-1B visa or pursuing an O-1A visa generally offers a faster route, registering each employee or potential hire for the lottery incurs a minimal fee of $10.

This presents a viable option, especially for recent graduates who may not yet meet the experience, qualifications, or achievement criteria necessary for an O-1A petition.

Lottery Selection Process

Similar to the previous year, the selection process for this year’s H-1B lottery will be entirely random.

Selection will not be determined by wage levels, although future iterations of the lottery may incorporate wage considerations.

Alternative Visa Options with Expedited Processing

For individuals already present in the United States, obtaining or transferring a visa can be a streamlined process depending on their country of citizenship.

Visas Available for Specific Nationalities

Several visa categories offer quicker processing times and simpler requirements for citizens of particular nations.

• TN Visa (Treaty National): This visa allows employers to sponsor qualified citizens of Canada and Mexico who possess at least a bachelor's degree in specified professions.

  The availability of premium processing significantly accelerates the approval timeline.

• H-1B1 Visa: Designed as an expedited pathway to an H-1B visa, the H-1B1 is accessible to citizens of Chile and Singapore.

  Like the TN visa, premium processing is an option for this category.

• E-3 Visa: Specifically for Australian nationals, the E-3 visa shares similarities with the H-1B visa.

  Unlike the H-1B, employers can sponsor candidates for an E-3 visa throughout the year, though premium processing isn’t offered.

  However, visa interview appointments in Australia are currently being scheduled quickly, facilitating a relatively fast processing time even for applicants located there.

• J-1 Visa (Researchers): The five-year J-1 visa, intended for research scholars, is generally straightforward to transfer to a new employer.

  While premium processing isn't available, the transfer process is typically efficient.

These visa options represent potentially quicker routes to employment authorization for eligible individuals already within the U.S. or those readily able to attend interviews abroad.

Green Cards

Obtaining a green card, which allows for permanent residency in the United States, necessitates fulfilling more demanding criteria compared to temporary, nonimmigrant visas. Processing times for green card applications at USCIS are generally extended when contrasted with those for nonimmigrant visas.

Among the various pathways, a green card based on marriage represents the most expedient, cost-effective, and straightforward option in terms of documentation. This is largely attributable to the fact that family-based green cards are not constrained by annual numerical limits or per-country quotas, unlike those based on employment.

Despite this advantage, significant delays persist in securing a date for the required interview. The EB-1A green card, designed for individuals demonstrating extraordinary ability, currently offers the fastest route among employment-based options.

Notably, USCIS, under the current administration, has reinstated a policy from before the Trump era, eliminating mandatory interviews for many employment-based green card applicants. This change is expected to alleviate the existing backlog in interview scheduling.

We wish you success in achieving your recruitment objectives!

Sophie

Do you have a question for Sophie? Submit it here. We maintain the right to modify submissions for improved clarity and space considerations.

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a comprehensive understanding of the limitations of “Dear Sophie,” please refer to our complete disclaimer. Direct inquiries can be addressed to Sophie at Alcorn Immigration Law.

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